HEARINGS BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE NINETY-EIGHTH CONGRESS FIRST SESSION ON S. 1324 AN AMENDMENT TO THE NATIONAL SECURITY ACT OF 1947

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• Publication Date: June 21, 1983
• Content Type: OPEN SOURCE

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S. 1324, AN AMENDMENT TO THE
NATIONAL SECURITY ACT OF 1947
HEARINGS
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
NINETY-EIGHTH CONGRESS
FIRST SESSION
ON
S. 1324, AN AMENDMENT TO THE NATIONAL SECURITY ACT OF 1947
JUNE 21, 28, OCTOBER 4, 1983
Printed for the use of the Select. Committee on Intelligence
U.S. GOVERNMENT PRINTING OFFICE
27-4450 WASHINGTON : 1983
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SENATE SELECT COMMITTEE ON INTELLIGENCE.
[Established by S. Res. 400, 94th Congress, 2d Session]
BARRY GOLDWATER, Arizona, Chairman
DANIEL P. MOYNIHAN, New York, Vice Chairman
JAKE GARN, Utah
JOHN H. CHAFES, Rhode Island
RICHARD G. LUGAR, Indiana
MALCOLM WALLOP, Wyoming
DAVID DURENBERGER, Minnesota.
WILLIAM V. ROTH, JR., Delaware
WILLIAM S. COHEN, Maine
WALTER D. HUDDLESTON, Kentucky
JOSEPH R. BIDEN, JR., Delaware
DANIEL K. INOUYE, Hawaii
PATRICK J. LEAHY, Vermont
LLOYD BENTSEN, Texas
SAM NUNN, Georgia
HOWARD H. BAKER, Jr., Tennessee, Em Officio
ROBERT C. BYRD, West Virginia, Ex Officio
ROBERT R. SIMMONS, Staff Director
GARY J. 'SCHMITT, Minority Staff. Director
VICTORIA TOENSING, Chief Counsel
PETER M. SULLIVAN, Minority Counsel
DORTHEA ROBERSON, Clerk
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The Senate Select Committee on Intelligence heard testimony con-
cerning S. 1324 at public hearings on June 21 and June 28, 1983. The
June 21 hearing included testimony from the original cosponsor, Sena-
tor Strom Thurmond, and witnesses from the Central Intelligence
Agency who explained how the Agency interpreted the legislation as
introduced.
The June 28 hearing presented testimony from the following in-
dividuals and organizations interested in the legislation : Maj. Gen.
Richard Larkin, president of the Association of Former Intelligence
Officers; John Norton Moore and John Shenefield, two members of the
American Bar Association's Standing Committee on Law and National
Security, Mary Lawton, Counsel for Intelligence Policy in the Depart-
ment, of Justice; Mark Lynch, representing the American Civil Liber-
ties onion; Charles S. Rowe, testifying on behalf of the American
Newspaper Publishers Association: Steven Dornfeld, representing the
national president of the Society of Professional Journalists; and Dr.
Anna Nelson, representing the National Coordinating Committee for
the Promotion of History.
On October 4, 1983, the committee met to mark up the legislation
and then voted unanimously to report S. 1324 as amended. Since then
the bill has passed the Senate.
BARRY GOLDWATER,
Chairman.
DANIEL PATRICK MOYNIHAN,
Vice Chairman.
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CONTENTS
Hearing days : Page
Tuesday, June 21, 1983-------------------------------------------- 1
Tuesday, June 28, 1983------------------------------------------- 43
Markup: Tuesday, October 4, 1983------------------------------------ 111
LIST OF WITNESSES
TUESDAY, JUNE 21, 1983
Hon. Strom Thurmond, Member of the U.S. Senate from South Carolina-_- 3
John McMahon. Deputy Director of Central Intelligence, accompanied by :
John Stein, Deputy Director of Operations, CIA; R. Evan Hineman,
Deputy Director for Science and Technology, CIA; Ernest Mayfield,
Deputy General Counsel, CIA ; Larry Strawderman, Chief, Informa-
tion and Privacy Division, CIA; and William Icotapish, Director of
Security ---------------------------------------------------------- 5
TUESDAY, JUNE 28, 1983
Mary Lawton, Counsel on Intelligence Policy, Department of Justice----- 45
Maj. Gen. Richard Larkin, president, Association of Former Intelligence
Officers, accompanied by John S. Warner, legal adviser, AFIO; and
Walter J. Pforzheimer, first legislative counsel, CIA------------------ 61
Mark Lynch, Division on National Security, American Civil Liberties
Union ------------------------------------------------------------ 67
Charles S. Rowe, editor and co-publisher, the Free Lance-Star, on behalf
of the American Newspaper Publishers Association------------------ 78
Steven Dornfeld. national president, Society of Professional Journalists,
Sigma Delta Chi, accompanied by Bruce W. Sanford, counsel, Baker &
Hostetler --------------------------------------------------------- 84
Mr. John Norton Moore, chairman, ABA Standing Committee on Law and
National Security------------------------------------------------ 92
John Shenefield, member, ABA Standing Committee on Law and National
Security -- 98
--------------------------------------------
Dr. Anna Nelson, professor of history, George Washington University,
National Coordinating Committee for the Promotion of History-------- 106
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S. 1324, AN AMENDMENT TO THE NATIONAL SECURITY
ACT OF 1947
TUESDAY, JUNE 21, 1983
U.S. SENATE,
SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The committee met, pursuant to notice, at 1:56 p.m., in room SD-124,
Dirksen Senate Office Building, Hon. Barry Goldwater (chairman of
the committee) presiding.
Present : Senators Goldwater, Chafee, Huddleston, and Leahy.
The CI-IAIRMAN. The meeting will come to order.
Today we welcome John McMahon, the Deputy Director of Central
Intelligence, who is appearing on behalf of the CIA to present the
Agency's view on S. 1324. He has brought with him Ernie Mayerfeld,
Deputy General Counsel, and Larry Strawderman, Chief of the In-
formation and Privacy Section of the Agency.
I also welcome Senator Strom Thurmond, who I will introduce in
just a few moments.
Next Tuesday afternoon I will again have a public hearing so that
interested individuals and organizations can testify.
This bill amends the National Security Act of 1947 so that the major
operational components of the Central Intelligence Agency will be
relieved of the overwhelming burden of searching and reviewing sensi-
tive operational files in response to certain requests for information
under the Freedom of Information Act.
This relief will allow these components to devote their resources to
gathering the vital intelligence our Government needs to make in-
formed decisions in foreign policy and national defense.
In order to expedite these hearings, I will. insert the remainder of my
opening remarks to be printed in the record as if read.
`[The prepared opening statements of Senators Goldwater and
Leahy follow:]
PREPARED OPENING STATEMENT OF CHAIRMAN BARRY GOLDWATER
The hearing will come to order.
Today I welcome John McMahon, Deputy Director of Central Intelligence, who
is appearing on behalf of the CIA to present the Agency's views on S. 1324. He has
brought with him Ernie Mayerfeld, Deputy General Counsel, and Larry Straw-
derman, Chief of the Information and Privacy Division for the Agency. Next Tues-
day afternoon, I will again have a public hearing so that interested individuals
and organizations can testify.
This bill amends the National Security Act of 1947 so that the major operational
components of the Central Intelligence Agency will be relieved of the overwhelm-
ing burden of searching and reviewing sensitive operational files in response to
certain requests for information under the Freedom of Information Act. This
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relief will allow these components to devote their resources to gathering the vital
intelligence our Government needs to make informed decisions in foreign policy
and national defense.
Let me explain very briefly why I think that this legislation is needed.
In the eight years since FOIA has been in its present form, the CIA has worked
hard to comply with the Act. However, it has been darned near impossible to keep
up with all the requests in the way the Act requires. I don't think Congress really
contemplated what burdens FOIA would place on an intelligence agency.
FOIA mandates that if someone requests all the information on a certain sub-
ject that all the files have to be located. In the intelligence agency, most of the
information is classified. But that fact does not end the agency's job. An.experi-
enced person must go through stacks and stacks of these papers, sometimes they
are many feet tall, and justify the reason that almost every single sentence should
not be released. If this is not done well, acourt could then order the information
released.
What has been the result of this burdensome process? Very little information, if
any, is released from operational files when the request seeks information concern-
ing the sources and methods used to collect intelligence. Even then the released
information is usually fragmented.
There is a great risk of a mistaken disclosure due to this mandatory search
and review of sensitive files and the possibility that some court may order the
release of information which could reveal a source's identity or a liaison relation-
ship. It is only these most sensitive operational files which this bill would
exempt from search and review.
It is important to know that this legislation does not frustrate the essential
purposes of the FOIA. Requestors will continue to have access to CIA files
containing the intelligence product, and to information on policy questions and
debates on these policies. Additionally, access to files for individual U.S. citizens
and permanent resident aliens who seek information on themselves will not be
affected by S. 1324.
The American public can only stand to benefit by this bill. By exempting those
operations files from search and review, the processing of all other requests
can be completed much sooner. The public will receive that information which
is releasable under the Freedom of Information Act and Privacy Acts in a far
more efficient and satisfying manner. The wait for a response from the CIA
now takes anywhere from two to three years. This kind of situation benefits
no one.
In short, this bill relieves the CIA of certain time consuming search and
review requirements. By so doing, it provides the FOIA requestor speedier
responses for those areas which should be subject to public scrutiny. At the
same time, it will enable the Agency to take a number of experienced personnel
out of the business of reviewing files and permit them to get back to intelligence
work.
We scheduled this hearing so that the public can know, as much as possible
within security restrictions, how this legislation will work at the Agency. John,
let's begin.
PREPARED OPENING STATEMENT OF SENATOR PATRICK LEAHY
Welcome Mr. McMahon. Today, we are taking up an issue which concerns
me as a defender of the Freedom of Information Act . whether to exempt
a portion of the central intelligence agency's files from search and review.
As a member of the Select Committee on Intelligence, I of course understand
and share your concerns about protecting sensitive information on intelligence
sources and methods. In the abstract, protection of the CIA's operational files
is unarguable. The FOIA was. never meant to require disclosure of our intel-
ligence sources and methods.
In practice, however, I wonder how much of a genuine problem you have on
your hands. As I understand it, there is no question of the Agency's being
compelled by the FOIA now to release sources and methods information. The
courts sustain your denials of such information. The courts support your policy
of refusing to acknowledge or to confirm the existence of "special activities."
On that basis you do not search files for information bearing on such activity.
Therefore; it seems to me that the FOIA is not jeopardizing sensitive intel-
ligence information. Your problem, in reality, is something else.
Let me be certain I understand the heart of your argument for S. 1324.
Despite FOIA's existing exemptions and the protection afforded by the courts,
good faith compliance with the search and review requirements of the FOIA Is
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alleged to be imposing an unnecessary and unproductive burden on the Agency.
The situation you describe seems to ue tnat tue Agency is forced to searcu and
review tue operational flies of the Directorate or Operations, the Directorate
of Science and 'rechnuiogy, and the Omcer of Security which it patently cannot
release.
From the materials before me, there appear to be three major costs in meeting
this requirement :
1. Because of the sensitivity of the.sources and methods information in opera-
tional flies, case oiticers must be diverted from their normal duties to review and
sanitize these materials. This is at the expense of reguiar inteiiigent-e work.
2. The need to amass all relevant documents pertaining to a request is break-
ing down vital compartmentation of operational information. lou fear that
sooner or later information will be released which will lead to the identification
of human sources' or intelligence methods.
3. The search and review of operational files, which for the reasons already
stated will not produce significant releasable information, is causing a major
backlog in responding to FOIA requests, including those.which would otherwise
result in the release of useful information. As 1 understand it, the backlog is
more than 2,500 cases and the delay in responding is about two years.
Mr. McMahon, before I make up my mind on this bill, I must be shown that
the consequence of its passage will not be the release of less information from
the CIA's files than at present. I cannot support a bill whose purpose or result
is to deny information to the -public that would otherwise be made available. My
view is that public access through the FOIA to intelligence information used by
policy makers, consistent with national security requirements, has been valu-
able-and must be continued. A good example is the release of national intelli-
gence estimates from the 1950's and early 1960's, such as the NIE's on the
Cuban Missile Crisis.
Moreover, I will need to see solid Agency assurances on the record that relief
from search and review of designated operational' files will lead quickly to
elimination of the backlog, and to better and more expeditious response to future
FOIA requests.
Signs of CIA seriousness about dealing with FOIA in the future will be im-
portant in helping me decide whether I can support S. 1324. Frankly, the Agency's
attitude toward FOIA in the past has not been encouraging. This bill offers an
opportunity for you to show that the CIA accepts the public's right to access to
information which does not jeopardize intelligence sources and methods or
disclose secrets vital to the nation's security.
Finally, Mr. McMahon, I want to review carefully with you and your associ-
ates precisely how operational files would be designated, which files would fall
in this category, and how information in operational files which does not fit the
four categories in the bill would be reachable through FOIA. I realize much of
this will have to be handled in a classified manner. Neverthless, to the extent
possible, it is important to have at.least -general answers on the public record.
In short, we must establish a thorough record which addresses all legitimate
concerns of FOIA users if this bill is to have my vote.
The CHAIRMAN. I welcome Senator Strom Thurmond, the distin-
guished chairman of the Senate Judiciary Committee, who is an orig-
inal cosponsor of S. 1324. For this reason, I have asked him to say a
few words as lead-off witness. Because of other commitments that he
has, he cannot stay for questions.
Strom, why don't you begin.
STATEMENT OF HON. STROM THURMOND, MEMBER OF THE U.S.
SENATE FROM SOUTH CAROLINA
Senator TIIURMOND. Thank you very much, Mr. Chairman. I am
pleased to comment today on S. 1324, the Intelligence Information Act
of 1983. It was my great pleasure to join the able chairman of this
committee, Senator Goldwater, in introducing that bill on May 18,
1983.
Mr. Chairman, I believe that we are all in accord on several basic
premises. First, the workings .of a democratic government must be as
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open to its citizens as is consistent with protecting the national secu-
rity. The electorate must have sufficient information to make national
choices concerning the policies and representatives which best serve
their interests.
We contrast our cherished tradition of open government with the
chilling secrecy of countries behind the Iron Curtain. Those citizens
are captive, not only by the threat of jail and torture, but by the lack
of information and the manipulated information which they receive.
The second principle upon which we agree is that effective security
measures are essential to the preservation of our form of government.
We need only look abroad and south of our borders to see certain ele-.
ments determined to undermine the liberties of freedom-loving peoples
throughout the globe. This imposes upon our democratic government
the unfortunate, but ? absolutely imperative burden of preserving our
security against those forces.
Finally, we can agree that our brave intelligence officers and agents,
on whose shoulders the day-to-clay responsibility of protecting our
freedom falls, deserve the maximum protection that our democratic
society can afford them. These individuals place their lives in jeopardy
to protect our safety and the safety of our families. They must not be
repaid with Government policies, no matter how well intentioned, that
unnecessarily risk their lives.
I am proud to have worked with the members of this committee to
pass the Intelligence Identities Protection Act last year. This was a
long-overdue effort to address one threat to the safety of these coura-
geous men and women. In addition, on June 16 of this year, the Judi-
ciary Committee reported S. 779, the Intelligence Personnel Protection
Act, which will make it a Federal crime to kill, or attempt to kill, an
intelligence officer or employee.
Mr. Chairman, as chairman of the Committee on the Judiciary, one
of.my highest priorities has been revision of the Freedom of Informa-
tion Act to address the three goals that I have outlined-open govern-
ment, national security, and agent protection.
I am pleased to report that the Committee on the Judiciary,. at its
executive session on June 16, 1983, only last week, ordered reported
S. 774, the Freedom of Information Reform Act of 1983. This is a bi-
partisan compromise which addresses some of the problems which have
arisen under the original act, while recognizing our shared goal of open
government. I am hopeful that we will soon be able to send that bill to
the House so that legislation can be on the. President's desk by the end
of this Congress.
S. 1324 is a complementary piece of legislation which deals with the
unique problems that the Central Intelligence Agency faces in this
area. Specifically, it amends the. National Security Act of 1947 to
exempt from disclosure and attendant search and review under the
Freedom of Information Act certain operational files designated by
the Director of Central Intelligence to be concerned with specified mat-
ters, including foreign intelligence, counterintelligence, or counterter-
rorism operations.
In order to protect the public's access to certain information, the bill
specifically states that nondesignated files which contain information
from designated files remain subject to search and review and that
designation will not prevent the search and review of a file for infor-
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mation concerning special activities which are not exempt from dis-
closure under the Freedom of Information Act.
Finally, the bill states categorically that these new provisions will
not affect proper requests by U.S. citizens and lawfully admitted resi-
dent aliens for information concerning themselves under the Privacy
Act or the Freedom of Information Act.
Mr. Chairman, I realize that this is a modest effort to address the
FOIA problems which the Central Intelligence Agency. has encoun-
tered. However, I believe that it is an absolutely essential proposal
which has a realistic chance of enactment in this Congress.
Not only will it continue protection for information which is clearly
exempt from disclosure under the Freedom of Information Act and
court decisions under the act, but it will substantially reduce the ad-
ministrative burden on the.Central Intelligence Agency.
This accrues to the benefit not only of the hardworking taxpayers
of this country, but also to those who have filed. or plan to file Freedom
of Information Act requests. The reduced administrative burden will
permit the CIA to respond to requests more quickly, thus providing
more useful and timely information.
Mr. Chairman, I want to commend you for your outstanding leader-
ship in this area and for scheduling such prompt hearings on this im-
portant bill. I look forward to working with you on this and other
legislation aimed at protecting our brave agents, our national security,
and the openness of our Government which we so dearly cherish.
The CHAIRMAN. Thank you very much, Senator Thurmond. We ap-
preciate those remarks more than I can. tell you and thank you for
coming over.
Senator TxuRrrorin. Thank you, Mr. Chairman.
The CI-IAIRMAN. Our next witness will be Mr. John McMahon,
Deputy Director of Central Intelligence, who I believe has served that
agency over 30 years.
Mr. MCMAHON. Yes, sir.
The CHAIRMAN. We are very happy to have you with us, John, so
you may proceed as you desire.
STATEMENT OF JOHN McMAHON, DEPUTY DIRECTOR OF CENTRAL
INTELLIGENCE, ACCOMPANIED BY JOHN STEIN, DEPUTY DI-
RECTOR OF OPERATIONS, CENTRAL INTELLIGENCE AGENCY; R.
EVAN HINEMAN, DEPUTY DIRECTOR FOR SCIENCE AND TECH-
NOLOGY, CIA; ERNEST MAYERFELD, DEPUTY GENERAL COUNSEL,
CIA; LARRY STRAWDERMAN, CHIEF, INFORMATION AND PRI-
VACY DIVISION, CIA; AND WILLIAM KOTAPISH, DIRECTOR OF
SECURITY
[Prepared statement of John N. McMahon follows:]
PREPARED STATEMENT OF JOHN N. MCMAIION, DEPUTY DIRECTOR OF
CENTRAL INTELLIGENCE
Mr. Chairman, Members of the Select Committee on Intelligence. it is a pleasure
to appear before you today to discuss S. 1324. The Central Intelligence Agency
urges enactment of this Bill._ It is carefully crafted to have positive benefits for
all those affected by it. It is unique legislation in this area of conflicting public
interests because it does not require the agonizing trade-offs between protection
of the Agency's intelligence mission and the public's access to government infor-
mation. In essence, this legislation would exclude the Agency's sensitive opera-
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tional files from a search and review process that results in an ever-present risk
of exposure of sources and methods, and creates a perceived risk on the part of
our sources and potential sources which greatly impairs the work of this Agency.
At the same time, with this exclusion, the public would receive improved service
from the Agency under the FOIA without any meaningful loss of information now
released under the Act. it is hoped the CIA can substantially curtail the present
2-3-year wait that requesters must now endure.
Under present law, there is in effect a presumption of access to CIA operational
files, and the Agency must defend a denial of our most sensitive information to
anyone who asks for it line by line, sometimes word by word. We, of course,
attempt to assure our sources, who live in fear of this process, that the exemptions
available under the FOIA are sufficient to protect their identities, but that assur-
ance is too often seen as hollow. They ask, with justification in my view, that,
in exchange for the risks which they undertake on our behalf, 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 intelli-
gence 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 limited in order to serve the needs of a
particular component or to accomplish a particular function. Agency personnel
are given access to specific filing systems only on a "need to know" basis. Opera-
tional files are more stringently compartmented because they directly reveal
intelligence sources and methods. Yet a typical request under the FOIA will seek
information on a generally described subject wherever it may be found in the
Agency and will trigger a search which transgresses all principles of compart-
mentation. 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. Here is a graphic illustration of the
product of an FOIA search. [Exhibit 1.] Although, in the case of records gleaned
from operational files, virtually none of this information is released to the re-
quester, security risks remain which are inherent in the review process. The
documents are scrutinized line by line, word by word, by highly skilled opera-
tional 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 informa-
tion is classified or otherwise protected under the FOIA. Furthermore, the
officer must bear in mind that under the FOIA each "reasonably segregable" item
of unprotected information must be released. 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 ap-
proved for release. Here is a typical example. [Exhibit 2.]
The public derives little or nothing by way of meaningful information from
the fragmentary items or occasional isolated paragraph which is ultimately re-
leased from operational files. Yet we never cease to worry about these fragments.
We cannot be completely certain of the composite information in our adversaries
possession or what further element they need to complete a 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 lives; 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 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 exemp-
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tions 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 relation-
ship with people in key positions with access to information that might other-
wise be inaccessible to the United States Government.
This is not an easy task, nor is it quickly accomplished. The principal ingre-
dient 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 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 come from societies where
secrecy in both government and everyday life prevails. In these societies, in-
dividuals 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 ab-
solute assurance that nothing willl 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 FOIA is not the only cause
of this fear. Leaks, unauthorized disclosures by former Agency employees, 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 numer-
ous 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
reason is given but if known would be for similar reasons, I cannot say. I sub-
mit, that, based upon the numerous cases, of which we are aware, there are
many more cases of sources who have discontinued a relationship or reduced
their information flow based on 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 increasing con-
sternation over what is seen as an inability to keep information entrusted to us
secret. 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 he 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. A distinguished Judge of the U.S. Court of Appeals,
Judge Robert Bork, in a recent dissenting opinion, had this to say about the
need to protect those sources that provide valuable information to the nation :
"The CIA and those who cooperate with it need and are entitled to firm rules
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that can be known in advance rather than vague standards whose application to
particular circumstances will always be subject to judicial second-guessing. Our
national interest, which is expressed in the authority to keep intelligence sources
and methods confidential, requires no less."
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 whatsoever.
The paltry results from FOIA review of operational files are inevitable. These
records discuss and describe the nuts and bolts of sensitive intelligence opera-
tions. Consequently they are properly classified and are not releaseable under
the FOIA as it now stands. The reviewing officers who produce these master-
pieces of black markings are doing their job and doing it properly. It is crucial
to note in this regard that their determinations have been consistently upheld
when tested in litigation. The simple fact is that information in operational
rceords is by and large exempt from release under the FOIA, and the few
bits and pieces which are releasable have 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 re-
lease must be checked with a desk officer with current responsibility for the
geographical area of concern. Hence, we must not only remove intelligence of-
fieers on a full-time basis from their primary duties, we must also continually
tap the current personnel resources 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 those covered with black
marks like the one I showed you before, must be reviewed by an officer from
the particular desk that wrote the documents or received it from the field, and
we cannot alter this practice because the risk of compromise is so great. You
can imagine the disruption, for example, on the Soviet desk when. the people
there must take time off from the work they are supposed to do to review
a document prepared for release under the FOIA. And it is obvious, of course,
that, when a CIA operation makes the front pages of 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.
Let me make clear that this legislation exempts from the FOIA only specified
operational files. It leaves the public with access to all other Agency documents
and all intelligence disseminations, including raw intelligence reports direct from
the field. Files which are not designated operational files will remain accessible
under the FOIA even if documents taken from an operational file are placed in
them. This will ensure that all disseminated intelligence and all matters of policy
formulated at Agency executive levels, even operational policy, will remain ac-
cessible under FOIA. Requests concerning those covert actions the existence of
which is no longer classified would be searched as before, without exclusion of
operational files. And of particular importance, a request by a U.S. citizen of
permanent resident alien for personal information about the requester would
trigger all appropriate searches throughout the Agency without exception.
I would also like to address the benefit to the public from this legislation. As
I mentioned earlier in my testimony, FOIA requesters now wait two to three
years to receive a final response to their requests for information when they in-
volve the search and review of operational files within the Directorate of Opera-
tions. We estimate that, should S. 1324 be enacted, the CIA could in a reasonable
time substantially reduce the FOIA queue. Indeed, if this Bill is enacted, I assure
you that every effort will be made to pare down the queue as quickly as possible.
This would surely be of great benefit if the public could receive final responses
from the CIA in a far more timely and efficient manner. The public would con-
tinue to have access to the disseminated intelligence product and all other in-
formation in files which would not be designated under the terms of the Bill.
There is one final issue, Mr. Chairman, which I would like to address before
concluding my testimony. This is the issue of how it would be possible for the
American public to have access to information concerning any Agency intelligence
activity that was improper or illegal. My firm belief is that, given the specific
guidance which we now have in Executive orders and Presidential directives
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along with the effective oversight provided by.this Committee and its counter-
part in the House, Were will not ever again be a repeat of the improprieties of
the past. And let me assure you that Bill Casey and I consider it our paramount
responsibility that the rules and regulations not be violated. However, should
there be an investigation by the Inspector General's office, the Office of General
Counsel, or my own orrice of any alleged impropriety or il,egaiity, and it is
found that these allegations are not frivolous, records of such an investigation
will be found in nondesignated files. In such a case, information relevant to the
subject matter of the investigation would be subject to search and review in
response to an FOIA request because this information would be contained in
files belonging to the Inspector General's office, for example, and these files can-
not be designated under the terms of this Bill. The same would be true, for
similar reasons, Mr. Chairman, whenever a senior Intelligence Community of-
ficial reports an illegal intelligence activity to this Committee or to the House
Intelligence Committee pursuant to the requirements in Section 501 of the
National Security Act.
Mr. Chairman, the CIA urges adoption of this legislation, and I understand
that the Administration also supports your Bill. This concludes my testimony,
Mr. Chairman. I have with me my Deputy General Counsel, Ernest Mayerfeld, as
well as Chief of the Information Privacy Division, Larry Strawderman. In addi-
tion, accompanying me to provide substantive expertise are Deputy Director for
Operations John Stein, Deputy Director for Science and Technology Evan Hine-
man, Director of Security William Kotapish, as well as others who will be
pleased to answer any specific questions you or the other Members may have.
Mr. MCMAHON. I am also very grateful for Chairman Thurmond
taking the time to give us his strong support for this bill, and I also
welcome the opportunity to address the members of the Select Com-
mittee on Intelligence and discuss S. 139-4.
The Central Intelligence Agency urges enactment of this bill. It is
carefully crafted to have positive benefits for all those affected by it.
It is unique legislation in this area of conflicting public interest be-
cause it does not require the agonizing tradeoffs between protection of
the Agency's intelligence mission and the public's access to Govern-
ment information.
In essence, this legislation would exclude the Agency's sensitive
operational files from a search and review process that results in an
ever-present risk of exposure of sources and methods and creates it
perceived risk on the part of our sources and potential sources which
greatly impairs the work of the Agency. At the same time, with this
exclusion the public would receive improved service from the Agency
under the FOJA without any meaningful loss of inforination now re-
leased under the act.
Under present law, there is in effect a presumption of access to CIA
operational files and the Agency must defend a denial of our most
sensitive information to anyone who asks for it line by line, sometimes
word by word.
We, of course, attempt to assure our sources who live in fear of this
process that the exemptions available under the FOIA are sufficient to
protect their identities, but that assurance is too often seen as hollow.
They ask, with justification, in my mind, 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 ironclad
guarantee which is the backbone of an effective intelligence service.
In addition, the review of operational files withdraws uniquely ca-
pable personnel from intelligence operations and compels us to violate
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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 limited in order to.
serve the needs of a particular component or to accomplish a par-
ticular function. Agency personnel are given access to specific filing
systems only on a need-to-know basis.
Operational files are more stringently compartmented because they
directly reveal intelligence sources and methods. Yet a typical re-
quest 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 20
Agency record systems to be searched. A difficult request can involve
over 100. In many instances, the results of these searches are prodi-
gious. Thousands of pages of records are amassed for review. Here is
a graphic illustration of the product of an FOIA search, although in
the case of records gleaned from operational files virtually none of
this information is released to the requester.
Security risks remain which are inherent in the review process.
The CHAIRMAN. May I interrupt? Is that one request?
.Mr. MCMAHON. Yes, sir, that is one request, and we had to screen
those two mountains of files in order to produce 6 inches of releasable
material.
The CHAIRMAN. Would you guess how many pages you had to go
through to get to that information?
Mr. MCMAHON. The documents are 91/2 linear feet.
The CHAIRMAN. Nine and a half linear feet.
Senator LEAHY. Is that a typical result? I mean, that would be the
median one, the average?
Mr. STRAWDERMAN. This would probably be in the minority, but
when you have one like this you have quite an extensive search
process to go through, and every page has to be read and scanned
word by word and line by line. No, this is not the garden variety
case, but we do have a number of these in the Agency to deal with at
any particular time.
Senator LEAHY. Thank you.
Senator CHAFEE. Could I ask a question here, Mr. Chairman ?
A request comes in, Mr. McMahon. Is it a generalized request such
as please send me all the information you have on your Operation
in Chile?
Mr. MCMAHON. Yes, sir. Often it is like that. What we have done
in recent years is attempt to negotiate with the requester to narrow
down the request into a topic that is specific enough for us to target
where the information is located.
In earlier days we had to take a request like that and fan it out
all through the Agency and seek information from files that may not
have it in there. That took a considerable amount of time. But by
negotiating with requesters we are able to narrow the requests down
so that we know what files to look at. Even though it may be as many
as 21 different systems, at least that is a lot better than 100 or more.
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Senator CHAFEE. Now the typical person that is asking, would they
be an author or columnist or wouiu it ue an inuiviuuai just wanting
to-
Mr. MCMAHON. It has varied over the years, Senator Chafee. Right
after the enactment of the new provisions or the amendments to the
FOIA back in 1974, we had a tremendous rush from citizens all
throughout the United States. That has now narrowed down to what
I would call the professional requester.
These are people from think tangs and institutes, from professors
and possibly even other intelligence services seeking to acquire in-
formation on what CIA may have regarding theme. So the composition
is still a good cross section, but we seem to have drifted away from
the average U.S. citizen coming in with a request.
Senator CHAFEE. And they have to pay a certain amount per page?
Mr. MCMAHON. 1W'e negotiate not so much with the private citizen
as opposed to an institute or a journalist who wants CIA to do their
reference work for them. So we negotiate that out.
I must say in some $21 million or more that we have spent since
FOIA was enacted, we have only extracted about $76,000 in fees.
Senator CHAFEE. Thank you. Thank you, Mr. Chairman.
Mr. MCMAHON. The documents which we review, as I mentioned,
Mr. Chairman, are scrutinized line by line, word by word by highly
skilled operational personnel who have the necessary training and
experience to identify source-revealing or 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. Furthermore, the officer must
bear in mind that under the FOIA each reasonably segregable piece'
of unprotected information must be released.
Sentences are carved into their intelligible elements and each ele-
ment is separately studied. When this process is completed for opera-
tional records, the result is usually a composite of black markings in-
terspersed with a few disconnected phrases which have been approved
for release, and the exhibit here typifies what happens to a good num-
ber of our released information, and I believe the "staff has prepared
for you examples of this.
The public derives' little or nothing by way of meaningful informa-
tion 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 cannot be completely certain of
the composite information in our adversary's possession and what fur-
ther element they need to complete a picture for them.
Perhaps we missed a source-revealing significance of some item. Per-
haps we misplaced one of the black markings. The reviewing officer is
confronted with the dizzying task of defending each deletion without
releasing any clue to the identity. of our sources. He has .no margin
for error.
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Those who have trusted us may lose their reputation; their liveli-
hood, and, indeed, their lives. The well-being of their families is at
stake if one apparently innocuous item falls into hostile hands and
it turns out to be a crucial lead.
As long as the process of FOIA search and review of CIA opera-
tional files continues, this possibility of error cannot be eradicated.
The harm done to the Agency's mission by such error is, of course, un-
known and incalculable. 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, na-
tional 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 in-
formation from human sources remains a central part of CIA's mis-
sion. 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
U.S. Government.
This is not an easy task, nor is it quickly acconmplished. The prin-
cipal ingredient in these relationships is trust. To build such a rela-
tionship, 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 toile-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. Public
exposure of one compromised agent will obviously discourage others.
One must recognize also that most of those who provide us with our
most valuable and, therefore, most sensitive information come from
societies where secrecy in both government and everyday life prevails.
In these societies individuals suspected to anything less than total
allegiance to the ruling party or regime can lose their lives, and in
societies such as these the concepts behind the Freedom of Informa-
tion 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 sub-
ject to that act. It is difficult, therefore, to convince one who is secretly
cooperating with us that someday he will not awaken to find in a
U.S. newspaper or magazine an article that identifies him as a CIA
spy.
Also. imaryine 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 toward cooperation, will demand
that he be protected. He wants absolute assurance that nothing will
be riven out which could conceivably lead his own increasingly so-
phisticated counterintelligence service to appear at his doorstep.
Of course, access to operational files under FOTA is not the only
cause of this fear. Leaks, unauthorized disclosure by former Agency'
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employees, and espionage activities by foreign powers all contribute,
but the perceived harm done by the FOIA is particularly hard for
our case officers to explain because it is seen as a deliberate act of the
U.S. Government.
Although we try to give assurances to these people, we have on
record numerous cases where our assurances have not sufficed. Foreign
agents, some very important, have either refused to accept or have
terminated a relationship on the grounds that in their minds-and
it is unimportant whether they are right or not-but in their winds
the CIA is no longer aule to absolutely guarantee that they can't be
protected.
How many cases of refusal to cooperate where no reason is given
but if known would be for similar reasons I cannot say. I submit,
however, that based upon the numerous cases of which we are aware
that there are many more cases of sources who have discontinued a
relationship or reduced their information flow based on the fear of
disclosure. No one can quantify how much information vital to the
national security of the United States has been or will be lost as a
result.
The FOIA has also had a negative impact on our relationships with
foreign intelligence services. Our stations overseas continue to report
increasing consternation of what is seen as an inability to keep in-
formation entrusted to us secret. Again, the unanswerable question
is how many other services are now more careful as to what informa-
tion they pass to the United States.
This legislation will go a long way toward relieving the problems
I have outlined. The exclusion from the FOIA 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 will not be looked at by people who have no need to know
that information.
A distinguished judge of the U.S. court of appeals, Judge Robert
Bork in a recent dissenting opinion had this to say about the need to
protect those sources that provide valuable information to the Nation.
He said, and I quote :
The CIA and those who cooperate with it need and are entitled to firm rules
that can be known in advance rather than vague standards whose application
to particular circumstances will aways be subject to judicial second-guessing.
Our national interest which is expressed in the authority to keep
intelligence sources and methods confidential requires no less. 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 whatsoever.
The paltry results from FOIA review of operational files are
inevitable. These records discuss and describe the nuts and bolts of
sensitive intelligence operations. Consequently, they are properly
classified and are not releasable under the FOIA as it now stands.
The reviewing officers who produce these masterpieces of black
markings are doing their job and doing it properly. It is crucial to
note in this regard that their determinations have. been consistently
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upheld when tested in litigation. 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 when are ` releasable have 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 sim-
ply clerical staff or even 1+'01A professionals. In order to do their job,
they must be capable of making difficult and vitally important opera-
tional judgments. Consequently, most of them must come from the
heart of the Agency's intelligence cadre.
Ni.oreover, ueiure airy iLe,,i w: lntoriiiation is released under the
FOIA, the release must be checked with the desk officer with current
responsibility for the geographical area of concern. Hence, we must
not only remove inteiiigence owcers on a fuu-tiiiie basis from their
primary duties, we must also continually tap the current personnel
resources of our operating components.
That is so because we have a practice in the operational directorate
which requires that every piece of paper which is released, even in-
cluding those covered with black marks like the ones I have shown
you here before, must be reviewed by an officer from the particular
desk that wrote the documents or received them 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; their work that they
are supposed to do in order to review a document prepared for release
under the FOIA. 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 re-
source needed in the performance of the Agency's operational mission.
Let me make clear that this legislation exempts from FOIA only
specified operational files. It leaves the public with access to all other
Agency documents and all intelligence disseminations, including raw
intelligence reports direct from the field. Files which are. not desig-
nated operational files will remain accessible under the FOIA, even if
documents taken from an operational file are placed in them.
This will insure that all disseminated intelligence and all matters
of policy formulated at Agency executive levels, even operational pol-
icy, will remain accessible under FOIA. Requests concerning those
covert actions the existence of which is no longer classified would be
searched as before without exclusion of operational files.
And, of particular importance, a request by a U.S. citizen or per-
manent resident alien for personal information about the requestor
would trigger all appropriate searches throughout the Agency with-
out exception.
I would also like to address the benefit to the public from this legis-
lation. Because of the backlog, FOIA requesters now wait 2 to 3 years
to receive a final response to their request for information when they
involve the search and review of operational files within the Direc-
torate of operations. We estimate that should S. 1324 be enacted, the
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CIA could in a reasonable time substantially reduce the FOIA queue.
Indeed, if this bill is enacted, every effort will be made to pare down
the queue as quickly as possible.
This would surely be of great benefit if the public could receive final
responses from the CIA in a far more timely and effective manner.
The public would continue to have access to the disseminated intelli-
gence product and all other information in files which would not be
designated under the terms of the bill.
There is one final issue, Mr. Chairman, which I would like to address
before concluding my testimony. This is the issue of how it would be
possible for the American public to have access to information concern-
ing any Agency intelligence activity that was improper or illegal.
My firm belief is that given the specific guidance which we now have
in the, executive orders and Presidential directives, along with the
effective oversight provided by this committee and-its counterpart
in the House, there will not ever again be a repeat of the impropri-
eties of the past. And let me assure you that Bill Casey and I consider
it our paramount responsibility that the rules and the regulations not
be violated.
However, should there be an investigation by the Inspector General's
office, the Office'of General Counsel or my own office of any alleged
impropriety or illegality and it is found that these allegations are
not frivolous, records of such an investigation will be found in non-
designated files.
In such a case, information relevant to the subject matter of the in-
vestigation would be subject to search and review in response to an
FOIA request because this information would be contained in files
belonging to the Inspector General's office, for example, and these files
cannot be designated under the terms of this bill.
The same would be true for similar reasons, Mr. Chairman, if under
the Congressional Oversight Act a senior intelligence community of-
ficial reports an illegal intelligence activity to this committee or to the
House Intelligence Committee.
Mr. Chairman, the CIA urges adoption of this legislation. I under-
stand that the administration also supports your bill.
This concludes my testimony, Mr. Chairman. You have introduced
those colleagues of mine who have joined with me here to testify on
this bill. But before I close, I would like to note the words of Judge
Gerhard Gesell of the U.S. District Court for the District of Columbia
in addressing an FOIA case.
He said, and I quote, "It is amazing that a rational society tolerates
the expense, the waste of resources, and the potential injury to its own
security which this process necessarily entails." I share his views. This
country needs S. 1324.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you very much, Mr. McMahon.
Now I must apologize for having made my opening statement and
not having recognized other members of the committee who might
have wanted to do the same.
Senator Chafee.
Senator CHAFEE. I have nothing, Mr. Chairman.
The CHAIRMAN. Senator Leahy.
Senator LEAHY. I do, Mr. Chairman, if I might.
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16
This is a matter of some interest to me. I was glad to hear Senator
Thurmond's support for the compromise legislation that Senator
Hatch and I worked out in the Judiciary Committee. It was a matter
of about a year and a half of work.
'today we take up an issue that follows on with that, an issue that
concerns me as one who has spent a great deal of time as a defender
of FOIA. That issue is whether to exempt a portion of the Central
Intelligence Agency's files from search and review.
I think Mr. McMahon's testimony, as always, was to the point, very
substantive, and is welcomed by us here. As a member of the Select
Committee on Intelligence I understand and I share your concerns
about protecting sensitive information on intelligence sources and
methods. I have stated this over and over.
In the abstract, protection of the CIA's operational files does not
even rate an argument. It is a given. The FOIA was never meant
to require disclosure of our intelligence sources and methods. It should
not, and it would be absolutely wrong if it did.
But in practice you have to question just what the problem is, the
real problem that CIA may have on its hands. As I understand it,
there is no question of the Agency being compelled by the FOIA now
to release sources and methods information, and the courts have sus-
tained your denials of such information. The courts support your
policy of refusing to acknowledge or confirm the existence of special
activities. On that basis you do not search files for information bear-
ing on those activities. So it seems to me that FOIA is not jeopardiz-
ing sensitive intelligence information per se, and the problem in
reality may be something else. Let me make sure I fully understand
the argument for this legislation.
Despite FOIA's existing exemptions and the protection afforded
by the courts, good faith compliance with the search and review re-
quirements of the FOIA is alleged to be imposing an unnecessary
and unproductive burden on the Agency. The situation described here
seems to be that the Agency is forced to search and review the opera-
tional.files of the Directorate of Operations, the Directorate of Science
and Technology, and the Office of Security, which are files that pat-
ently it cannot release.
There are three major costs in meeting the search requirements for
these materials, as I see it. One, because of the sensitivity of the
sources and methods information in operational files case officers have
to be diverted from their normal duties to review and sanitize these
materials. That is at the expense of their regular intelligence work.
Second, the need to amass all relevant documents pertaining to the
request is breaking down vital compartmentation of operational in-
formation. You fear that sooner or later information is going to be
released which will lead to the identification of human sources or
intelligence methods-again a major concern.
And, third, the search and review of operational files, which for
the reasons already stated would not produce significant releasable
information, is causing a major backlog in responding to FOIA re-
quests, including those which would bring about normal release of
information. I understand there is a backlog of about 2,500 cases and
the delay in responding is around 2 years.
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Now, before I make up my mind on this bill, I want to be shown
that the?consequence of its passage will not be the release of less infor-
mation from the CIA's files than at present. I understand from your
testimony that that is not the intent of the CIA. Is that correct'?
Mr. MCMAHON. That is correct, Senator.
Senator LEAHY. I would not support a bill whose purpose would
result in denying information to the public that would otherwise be
made available. My view is that public access under FOIA to intel-
ligence information used by policymakers, consistent with national
security requirements, has been valuable. It has resulted, for example,
in the release of National Intelligence Estimates from the 1950's and
early 1960's, such as the NIE on the Cuban missile crisis.
I also want to see solid Agency assurances on the record that relief
from search and review of designated operational files will lead
quickly to elimination of the backlog and a more expeditious response
to future FOIA requests.
Signs of the Agency's seriousness about dealing with FOIA in the
future will be important in helping me to decide whether to support
S. 1324. In the past, its attitude has not been encouraging. The bill
offers an opportunity for you to show that the CIA accepts the pub-
lic's right to access to information which does not jeopardize intel-
ligence sources and methods or disclose secrets vital to the Nation's
security.
I very much appreciate the statements made here. The Director of
the CIA said in a speech that FOIA. should not even apply to the
CIA. The facts are, of course, that it does. You are not suggesting
that here, and I am glad of that.
I want to review carefully with you,and your associates precisely
how these operational files would be designated, which files would
fall in this category, and how information in operational files that
does not fit the four categories in the bill would be reachable. under
FOIA.
Some of that will have to be done in a classified session, Mr. Chair-
man, but a lot can be handled on the public record. This is the longest
opening statement I have given in this committee on any matter, Mr.
Chairman. But I probably have, spent as much time as any Senator,
and perhaps more than most, on FOIA during the last 21/2 years.
The progress of our bill in the Judiciary Committee on FOIA will
to a greater or lesser degree be affected by the progress of this one.
I thought it best to set my feelings on the record for those who are
following what I might be doing on it.
Thank you.
The CHAIRMAN. Senator Huddleston.
Senator HUDDLESTON. Well, thank you very much, Mr. Chairman.
As you know, this committee for at least the last 4 years has been
trying to resolve the issue of the CIA's role under the Freedom of
Information Act. In 1979 Admiral Turner asked us to exempt from
the act the operational files of every agency of the intelligence com-
munity. Some of us felt that was a little too broad, and instead the
intelligence charter bill in 1980 included a narrower provision just for
the CIA's operational files.
When that bill was introduced, I thought the exemption ought to be
considered within the framework of charter legislation and I still
think so. The safeguards in a new CIA charter would make it less
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necessary to have the Freedom of Information Act as a check against
abuses. However, without a new charter the issue takes :on a different
light.
In 1981 we held hearings on separate legislation to exempt opera-
tional files of all intelligence agencies, as well as Director Casey's
proposal to exempt the entire CIA. At that time it became clear to me
that any legislation on CIA and the Freedom of Information Act must
be very carefully balanced. The new bill introduced by Senator Gold-
water this year represents an effort to benefit both CIA's operational
interests and the public's right to know and to have as much informa-
tion as possible about their government.
It seems to me our job is to determine whether or not this bill does
in fact serve both of those interests adequately. There is no question
that CIA would gain from not having to search its operational files
in response to an FOIA request, but what about the public's need to
know'? Some of the questions I want to check out are :
Is it true that the bill would not reduce the actual amount of infor-
mation that comes out because the courts already let CIA withhold
operational data?
Will reporters and scholars still have access to as much informa-
tion as possible consistent with national security about the CIA intelli-
gence product that goes to national policymakers?
What will happen to the enormous backlog of CIA requests, and
how does CIA plan to improve its processing of requests for informa-
tion that can be declassified?
And, finally, does the bill affect the -right of an American citizen
to have the courts review CIA decisions to keep secret the facts about
controversial operations or alleged intelligence abuses?
The committee needs, to submit detailed questions to the CIA on
these matters, and some of them will be discussed during this hearing.
I hope .that most of the information or all of it can be made public so
that everyone who is interested can understand the. purpose and the
effects of this particular legislation.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you very much.
We will begin the questioning with Senator Chafee, who was very
instrumental in this work in the past year. John.
Senator CHAFES. Thank you very much, Mr. Chairman.
Mr. McMahon, we have some statistics here before us. I do not know
whether you have the same group that show a very dramatic decline
in the FOIA requests. Let me take these statistics starting in 1975.
It shows in 1975 you received 6,600 requests; in 1982 you received
1,000. Furthermore, in the bar graphs that you have here, although
1975 was the peak-well, this shows 1975, and then it jumps to 1978,
and then 1979 right to the present. There has been a rather astonishing
decline in these requests.
Is there any particular reason for that? Was it the novelty of it that
started it off ? Let us see. This started in 1975, did it not?
Mr. STRAWDERMAN. I will take that, Senator Chafee. In 1975 we had
an influx of people asking for what do you have on me, or a my-file
request when the act was passed in 1974. We. can service those fairly
easily, since for about 84 percent of them there are no records available.
Senator CHAFER. That disappointed them probably, did it not?
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Mr. STRAWDERMAN. We have gotten down to the more serious re-
questers in the last couple of years, so it seems to be a gradual tailoff of
the my-file requests coming in from the early days.
Senator CHAFEE. But, even so, take the difference between 1978 and
1982. It went down 50 percent from 2,100 to 1,000, and
Mr. STRAWDERMAN. I'lie green line on the chart, senator, is the Pri-
vacy Act requests. The middle line, I believe, are the Freedom of In-
formation Act requests, so it really came down from 1,600 to 1,010,
and it is continuing at about that same rate this year.
Mr. MCMAHON. I think you also have to bear in mind, Senator
Chafee-and I hate to admit this-but I would suspect that a number
of well-meaning requesters when they know it is going to take 2
to 3 years to get an answer are discouraged.
Senator CHAFEE. Well, I suspect that might well be so.
Is the term "operational file" a term of art? Does that mean some-
thing by its very terminology? If so, why is it not very convenient for
you or the Director just to mark everything an operational file?
Mr. MAYERFELD. I think the bill defines that quite clearly because it
does say that operational files may be designated only if they concern
the items listed on page 5, beginning line 20. In other words, they have
to concern the means by which foreign intelligence, et cetera, is col-
lected by scientific and technical means. They have to concern foreign
intelligence operations, counterintelligence and counterterrorism op-
erations, and on those files in the Office of Security that are concerned
with the investigations conducted to determine the suitability of
sources, and a very important item, beginning on line 4, page 6, intelli-
gence and security liaison arrangements or information exchanges
with foreign governments or their intelligence or security services.
In other words, if you will, this constitutes the definition of opera-,
tional files.
Senator CHAFES. I see. Let me ask you-Mr. Chairman, when my
time is up, just let me know.
The CHAIRMAN.. Go ahead.
Senator CHAFEE. On these charts here it shows the appeals from
1975 to 1982. Now is that a litigating appeal, an appeal to a court?
Mr. STRAWDERMAN. This is an administrative appeal, right.
Senator CHAFEE. That is an administrative appeal.
Mr. STRAWDERMAN. That is right.
Senator CHAFEE. I must confess I do not know. Who do you appeal
to? Is there an appeal procedure set up?
Mr. MAYERFELD. Yes ; to a committee composed of Deputy Directors.
Senator CHAFEE. But in addition there is a judicial right of appeal,
is there not?
Mr. MAYERFELD. That is right, Senator.
Senator CHAFEE. Now how many of those-is It my understanding
that the CIA has won every one of those?
Mr. MAYERFELD. It has won every one of those where we asserted
a national security exemption, a classification exemption, or the au-
thority under the Director's authority to prevent disclosure of sources
and methods. We have won every one of those. I should say, Senator,
with one exception.
Senator CI-IAFEE. When you say every one, roughly how many are
you talking about-not exactly, just roughly?
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Mr. DIAYER,FELD. Well, we are talking in terms of hundreds. We have
had, I think, some 300 FOIA lawsuits since the act has been in effect.
Senator CIJAFEE. 1Ve11, that is a pretty good batting average. You
have won 299.
Mr. MAYERFELD. 256 to be precise. That is the exact figure.
Senator CHAFEE. That is better than Lou Hall's.
Dir. MAYERFELD. Nell, in a way, Senator, if I may, this,proves the
need for this bill because what we usually battle over in the courts is
this kind of operational information.
Senator CHAFES. 1\ ow in the course of defending ourselves, do you
have to go and reveal the information, or how cto you work that?
Is that a problem in itself ?
Mr. MAYERFELD. It is a very serious problem. The law requires that
every segregable piece of a document that you withhold has to be
individually described. It is very hard to describe an item of secret
information without giving away the secret, and once you have de-
scribed it you have to justify the need to withhold that.
If I may take you back to that document here, those block letters
in there, this was a document which was subject to litigation, and in
the affidavit that we had to file to support our arguments to withhold
these, each one of these, beginning from A and it runs through L, was
a certain kind of information which we were withholding, whether
it was the name of an agent, the name of an employee, the identifica-
tion of a source, the location of a CIA secret installation, and so forth.
And each one of those block letters represents one of those. And in
the accompanying affidavit we had to say wherever the letter K ap-
pears the name of a CIA source appeared, and then we have to go on
and say in the affidavit that we are required to file why it is neces-
sary to protect Mr. K as a CIA source.
Senator CI-AFEE. I see, that is dangerous. Now let me ask you this,
in conclusion, Mr. McMahon. You testified in favor of this act and
you are for it. Does it do you much good? On a scale of 10, if 10
were your best wish-which I suspect might be to be exempt entirely
from the act-how much does this do for you?
Mr. MCMAHON. If you are running an intelligence service, Senator
Chafee, you would like to have total exemption for the Agency.
Senator CFIAFEE. I am not faulting you for that one bit.
Dir. MOMAITON. But if you are trying to live within the spirit of
FOIA and what it was intended to do for the American people, then
I support this bill because it makes available or accessible to the
citizens of the United States that information which they might legit-
imately inquire about, and hence we are obliged under this bill to
do a search and make sure that we search information against that
request.
But the key is that it protects our sources. There will not be in-
stances where our source's name may be inadvertently revealed or an
incident described which reveals that source through an oversight,
and that is what we are trying to do.
Senator CHAFER. I know that is the objective of the act, but in fact
do you think that will succeed larryely?
Mr. MnA'TAT-103N. Yes, sir, it will, and it will do away with the per-
ception that a number of our sources have that they.are threatened
because of the present FOIA Act.
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Senator CHAFEE. Do you agree with that, Mr. Stein?
Mr. STEIN. I do indeed, Senator Chafee. I would add simply to it
another very important feature of the bill.
In the espionage business, as mentioned in Mr. McMalion's testi-
mony, the mere act-the mere act of searching-causes a breakdown
in one of the cardinal rules of the intelligence business, namely, the
compartmentation of its information.
When a request comes in, anything relating to that request is lumped
together and it is taken out of compartmented sections of the opera-
tional files, put together, xeroxed, and so forth, and so there is an
automatic breaking down of security within the Directorate of Opera-
tions itself-a very dangerous practice.
Senator CHAFEE. Well, thank you, Mr. Chairman.
The CHAIRMAN. Thank you, John. Do you have some questions?
Senator HtDDL.ESTON. Yes, Mr. Chairman.
One of the key questions, of course, raised about the bill itself is
how it will affect information that might appropriately come out re -
lating to intelligence abuses. I think if we look back we can point to
the fact that each of the CIA Directorates covered by the new exemp-
tion was involved in some kind of abuse disclosed by the Rockefeller
commission and by the Church committee.
The MKULTRA program for testing drugs on unwitting subjects
was conducted by a component of the Directorate for Science and
Technology, for instance. And the CHAOS program for collecting
information about domestic protests and dissent was carried out by
the Directorate of Operations. And then two projects of the Office of
Security, Resistance and Merrimack, involved infiltration of domestic
groups protesting against the CIA itself.
Now in your opening statement, Mr. McMahon, you said that CIA
would search the records of investigations of abuses, but what about
the operational files as they relate to the abuses themselves? Would
they be subject to search and review?
Mr. MCMAHON. Yes, sir, if there is any abuse, Senator Huddleston,
within the Agency, that would automatically be reported upward. I
am sure this committee can attest to Agency employees carrying to its
attention things that they are concerned about, whether they are il-
legal or not. So we know that happens.
The Agency is also spring-loaded as an institution right now re-
garding the propriety and legitimacy of everything it is doing. The
whole structure, the whole management structure, within the Agency
is designed to make sure that abuses do not occur, and if they do occur
that they are addressed. And any process by which that takes place
would not be a part of the operational file. It would be part of either
my office or the Inspector General's office, or General Counsel's office
and would be available for search and review under the FOIA.
Senator HUDDLESTON. So you do not see this act as inhibiting in any
way the information that is available or the investi g ation that may
be conducted that might relate to some actual or alleged abuses by
CIA ?
Mr. MCMAHON. No, sir, no more so than it does right now.
Senator HUDDLESTON. What about when an operation has become
declassified or has been officially acknowledged by the Government?
What happens then to an actual operation ?
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Mr. MCMAHON. Then that would become a nondesignated file and
would be subject to search and review.
Senator HUDDLESTON. Would that be an automatic process?
Mr. MCMAHON. Go ahead.
Mr. MAYERFELD. Yes; the bill specifically provides, Senator, that
information in operational files on special activities, that is covert
action operations which, as the bill says, the fact of which can no
longer be classified would be subject to search and review.
Senator HUDDLESTON. That is an automatic process?
Mr. MAYERFELD. The bill. provides for that specifically as to covert
action.
Senator HUDDLESTON. Now, questions have been raised as to whether
or not the bill would reduce the amount of information actually pro-
duced by the CIA to reporters and scholars and concerned citizens, and
as I understand it the bill is not intended to exempt files that contain
intelligence product-that is, either raw or finished intelligence reports
used by CIA analysts and by the policymakers.
And the bill is not supposed to exempt declassified special activities,
even covert activities, that go beyond intelligence collection. Is that
correct?
Mr. MAYERFELD. That is correct.
Senator HUDDLESTON. What about historically valuable information
on collection operations themselves? I think one example is a document
that we have that is entitled "The Berlin Tunnel Operation," which is
a very intriguing document. It was a clandestine service history of the
tunnel from West to East Berlin built by CIA back in the 1950's. The
study was obtained from the CIA under the Freedom of Information
Act by David Martin, who was then a Newsweek reporter, and he used
it in writing his book "A Wilderness of Mirrors."
Now, would studies like this that deal with important CIA collection
operations be subject to search and review under the bill? Mr. STRAWDERMAN. Yes, sir, we envision that intelligent studies
would be subject to search and review. We have studies of intelligence
that are produced and articles. from those have been released.over
recent years-67 of them in total-and they would be subject to search
and review under the bill. So, they would be accessible to historians and
researchers seeking that sort of information.
Senator HUDDLESTON. So, the bill providing for search and review of
information about declassified covert operations, would it also permit
the search and review on those rare cases when the existence of a col-
lection operation can be declassified for historical purposes?
Mr. MAYERFELD. Well, as to the Berlin Tunnel example, that par-
ticular document released to David Martin was found in nonopera-
tional files. There is a constant process going on where our Center for
Studies in Intelligence writes pieces of historical value and actuallly
puts out an in-house publication. Much of the contents of that par-
ticular publication is unclassified, but even the classified portions of
that will be subject to the act, will be subject to requests for declassi-
fication review under FOTA.
Senator HUDDLESTON. Mr. Chairman, I have a few more questions.
Senator CTTAFEE (presiding]. Go ahead.
Senator HUDDLESTON.. Well, I think another area is the role of the
courts. I would like to get that pinned down. The basic principle of
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the Freedom of Information Act for many is that the courts will have
an opportunity to review the bureaucratic decisions that keep informa-
tion secret.
Looking at the role of the courts in this specific legislation, we have
already dealt with the definition of "operational flies" and I- assume
that the courts would be able to review the determination that a par-
ticular file or set of files is exempt from search and review. Is that your
understanding?
Mr. MAYERFELD. No, Senator, I do not think it is. I think the way
this bill is crafted it leaves that discretion to the DCI because it does
specifically state that if such files-in other words, they will be exempt
if such files have been designated by the DCI. My understanding of
that bill would be that the designation by the DCI would not be j udi-
cially reviewable and that this bill would delegate that authority to
the DCI.
Quite frankly, any other interpretation I think would turn this
legislation on its head, because if every time the designation by the
DCI were challenged in court, we would be right where we started.
Mr. MCMAHON. I think.your concern, Senator Huddleston, can be
handled through the oversight process where this committee will be
knowledgeable of our files and what files have been so designated.
Senator HUDDLESTON. So the person seeking information, then,
would have to pretty well rely on the oversight committees to assure
that the Agency is making a proper designation of the files.
Mr. MCMAHON. I think that goes to the very essence of everything
we do.
Senator HUDDLESTON. Do you think any kind of court review would
be detrimental to what you hope to accomplish by this act?
Mr. MAYERFELD. I would say so, Senator.
Mr. MCMAHON. I think it would defeat it, Senator. In fact, the
courts have found in cases in the past that the best authorities on the
sources and methods and the classification are those in the business of
doing it.
Senator HUDDLESTON. You do not see this as a major problem for
those who are seeking the information?
Mr. MCMAHON. No, sir. Knowing what I know about our operational
files and the content and the information in there, what the citizenry
of the United States should have access to is our product and the dis-
seminated intelligence, and that is where the information is of interest
to them.
Senator HUDDLESTON. I will have some further questions.
Senator CHAFEE. All right. Senator Leahy.
Senator LEAHY. Thank you. Let me just make sure I understand one
part of this-how we would move into what files to be looked at.
Suppose we have a covert operation, but then it is acknowledged,
thereby becoming an overt operation. Can someone then request a
search of the operational files on this operation?
Mr. MCMAHON. They could request information that is contained
in those operational files and they would then be considered non-
designated files and a search and review would take place and we would
then apply the standards that presently exist under FOIA.
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Senator LEAHY. So the President having acknowledged a covert
operation in Nicaragua makes those files a lot different than they were
say 2 months ago?
Mr. MOMAHON. If the President acknowledged a covert operation in
Nicaragua, we would still be obliged to protect any alleged sources or
methods we have there.
.Senator LEAHY. I understand. I just wanted to use a concrete ex-
ample to make it easier. [Laughter.]
You have got to understanu us small town laWyers. We come down
here to Washington, Mr. McMahon, and we have to just go simple fact
by simple fact.
Mr. MCMAHON.. Coming from New England I appreciate that.
Senator LEAHY. That's how we keep up with you big city fellows.
Let me ask a couple of specific questions. By the way I think that
this type of open session is very good, and I think that you well under-
stand and encourage us to lay down a solid legislative history. Your
answers to Senator Huddleston's questions just now are going to be
an integral part of the legislative history if this act is to be passed.
To follow up on one of Senator Chafee's lines of questions, again
an important area to go into, the Agency has a present -position on
FOIA. I understand your own feelings as an intelligence professional
would be what any of us would have in a similar position. Given your
preferences as a professional intelligence officer, there would be no
FOIA requirement of the Agency whatsoever. I do not think anybody
disputes that.
But, within the context of the way our Government functions,' the
Agency being part of the Government, and in the context of FOIA
applying to the rest of the Government, what is the Agency's position
on the public's right to access to information influencing this Nation's
foreign and national security policy?
Mr. MCMAHON. That is a tough call, Senator. I think that we are
obliged to support the wisdom that Congress and the Constitution
determined years ago when it gave the President the responsibility
for conduct of foreign affairs. And in order to carry that out it was
determined that certain forms of classification or secrecy had to exist.
I think that we would support the secrecy which protects the ability
of the President to prosecute foreign policy in a manner that is effec-
tive and efficient.
Senator LEAHY. Well, let me go to a followup question on that. Is
this bill what you want, or is it a camel's nose under the tent kind of
bill? Is it a prelude to renewed pressure for broader exemption ?
Mr. MCMAHON. I think it is a bill that is a compromise of the Agen-
cy's recognizing that it cannot have total exemption and must seek
something that protects our sources, yet at the same time lives within
the spirit and the intent of Freedom of Information. I think we have
struck an arrangement which just borders on acceptability in CIA.
Senator LEAHY. I see. Well, your answer to that is still important
in gathering whatever kind of support there might be. It is like the
FOIA work, that Senator Hatch and I have done in the rest of the
FOIA legislation.
Deper ding upon what particular problem each one of us may have
been looking at, everybody has had to give somewhat to reach a work-
able compromise. ,A lot of the areas where we reached agreement has
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been on the basis of an understanding of where the bill is going, and
that if we agree on a particular area, for example, we would uo our
best to fight off further amendments.
I would think that in trying to get support for this Goldwater-
Thurmond bill, a telling factor in the minus of a lot of Senators, and
certainly in mine, will ue whether this is the final product or prelude
for a quick followup.
Now I am not suggesting CIA or anybody else is precluded from
coming back on a piece of legislation if it is not working out, to seek
the normal kinds of adjustments, as we are doing in I'U1A. But I want
to know if this is a prelude to asking next year tor a wider exemption?
Mr. McMAHON. There is no hiuden agenda here, Senator Leahy.
What you see is what you get, and this is what we are standing by.
Senator LEAHY. Do you understand my question and the reason
for it?
Mr. MCMAHON. Yes, I do.
Senator LEAHY. Is that the White House position on this bill?
Mr. MCMAHON. I am led to believe that, yes.
Senator LEAHY. So we should not expect further efforts from them
to exempt more of the intelligence community front FOIA?
Mr. Mc1L-,HON. Not from them. I imagine there may be an effort
.or two, but it would not be sanctioned.
Senator LEAHY. Well, if it is not sanctioned, it isn't going anywhere,
let me tell you. [Laughter.]
Whoever did that would have two strikes against them. That would
be interesting. At that point the White House and I would be joining
hands.
I have a number of questions for the record, Mr. Chairman, but there
is one more I would like to ask Mr. McMahon.
On page 8 of your prepared testimony you state that :
Should there be an investigation by the Inspector General's office, the Office
of General Counsel, or my own office of any alleged impropriety or illegality
and it is found these allegations are not frivolous, records of such investigation
would be found in nondesignated files.
I applaud that conclusion. I want to know who makes the deter-
mination that an allegation of abuse or impropriety is either serious
or frivolous-the sort of threshold determination.
Mr. MCMAHON. Well, I think that the process of the investigation
which the Inspector General or the General. Counsel would undertake
would determine that and that is usually done in concert with the Di-
rector or myself.
Senator LEAHY. Does that mean that documents relating to any
allegation deemed frivolous would be placed in designated files and
therefore would not be searchable?
Mr. MCMAHON. I do not think so.
Senator LEAHY. Did you want to comment?
Mr. MAYERFELD. `Tell, that was not the intent, I do not think, that
is what Mr. McMahon had in mind there, but there are an awful
lot of frivolous allegations that arrive in our mailbox. There is a large
volume of crank letters that we do get that I think would have to
be treated as frivolous.
Senateor LEAHY. I have a great deal of sympathy for that.
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A few weeks ago I was walking across the west front of the Capitol,
Mr. Chairman, on the first nice uay we had. It had stopped raining.
And a guy walked up to me and made some statement about Japan.
Unfortunately, I am blind in my left eye, which makes me a sucker for
the right punch. He hauled off and belted. me.
I thought that was an unfriendly sort of thing to do, and fortu-
nately so aid a police officer who made me look like a midget and who
suggested that the man might want to stay around for a bit.
It turned out he had been released the day before from St. Eliza-
beth's, where, among other things, he had been visiting following his
criminal charges of assault with intent to kill a police officer and other
things-not enough to keep him there, but just enough for observation.
He has now written to the Democratic leader. of the' Senate, from
whose State he comes-by coincidence, of course. [Laughter.]
We try to keep this thing all. in the family-saying that he* had a
very definite reason for hitting me, because after I committed a mur-
der in Chicago. He said I let poor Mr. Loeb and Mr. Leopold take
the blame for it. As nearly as I can tell, that murder occurred about
20 years before I was born, so I would categorize that as a frivolous
accusation. [Laughter.]
So if I get a few of- those, I can imagine the number you get.
There is a person who prowls the Halls here who has told each one
of us that she is protecting us from rays from some machine you have
out at CIA directing the activities of the members of this Intelligence
Committee. At least all of us now know how to explain to our con-
stituents just why we vote the way we do.
Mr. McMAHON. I think we have to put that machine in for a rehab;
it's not working very well. [Laughter.]
Senator LEAHY. My last question is, can you assure the committee
that any information relating to alleged abuse or impropriety will be
searchable?
Mr. MCMAHON. Definitely.
Senator LEAHY. Thank you, Mr. Chairman.
The CHAIRMAN [presiding.] Thank you very much.
The question was asked about the President's position on this legis-
lation. I wrote to President Reagan on April 11 this year and reminded
him that the 1980 Republican Party platform stated, "We will sup-
port amendments to the Freedom of Information Act to reduce costly
and capricious requests to the intelligence agencies."
I then asked him whether he and his administration would suppport
some form of legislative relief for the intelligence community from
the Freedom of Information Act in the 98th Congress. The President
responded to me a few days later and said that he would support a bill
which would allow CIA to devote more attention to their primary mis-
sion of developing accurate and timely intelligence while assuring
continued access by the public, to information in nonoperational files,
which would still be subject to the existing FOIA exemptions.
And then he went on to say that he looked forward to early introduc-
tion of the bill and that he would work with me and my Senate col-
leagues to achieve this important-goal. In summary, then, I think it is
very fair to say that the President and the administration will support
this piece of legislation which Senator Thurmond and I have
introduced.
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Now let's address some of the smaller problems that you have. I un-
derstand that the Ayatollah Khomeini has submitted lour requests to
the CIA for information about the Shah of Iran. Must the CIA answer
FO1A requests by the Ayatollah Khomeini under the language of
my bill?
Air. MCMAHON. No, not under the language of your bill, as long as
that information is contained in operational files. If it is contained in
disseminated intelligence, then we would have to do a search and
review.
The CHAIRMAN. Did you have an answer to that?
Mr. MAYERFELD. No; that is correct.
The CHAIRMAN. I thought that was just a little bit farfetched to
have that fellow asking anything from the U.S. Government.
Mr. MCMAHON. Mr. Chairman, I think that a rough count of the
FOIA requests shows that about 7 or 8 percent of it comes in from
overseas.
Senator LEAHY. Mr. Chairman, I should note that the bill that
Senator Hatch and I have worked on would preclude a foreign na-
tional from making such a request.
The CHAIRMAN. I just want to say under the language of this act
the CIA will still be required to respond to proper requests from
U.S. citizens and lawful aliens under the Privacy Act.
Mr. STEIN. Mr. Chairman, may I comment there with regard to the
comment of Senator Leahy? In the case of the request by the Ayatollah
for information on the Shah, that was done by a New York law firm.
Senator LEAI-IY. That does create a problem under either of these
acts.
Mr. STEIN. Yes, sir.
The CHAIRMAN. Can Philip Agee submit a request under this bill?
Mr. MCMAI-ION. Yes, he can, sir. You may recall that we have been
working for a number of years on a request for Philip Agee. We esti-
mated that we have done research totaling the equivalent of about
300,000 dollars' worth of man-year effort which went into review of his
request.
The CHAIRMAN. But under this legislation a fellow like Agee or any
other requester could not get information from your designated files?
Mr. MCMAIION. No, sir, they may not. That is why we endorse this
bill.
The CHAIRMAN. What will be the effect of the bill on the workload
required by pending lawsuits?
Mr. MCMAIION. I am sorry, sir, I did not hear that.
The CHAIRMAN. What will be the effect of this bill on the workload
required by pending lawsuits?
Mr. MAYERFELD. I have some pretty close figures on that, Mr. Chair-
man. There are currently 77 pending lawsuits before the court. If this
legislation is enacted, 46 of those lawsuits would be affected. Twenty-
two of them should be dismissed entirely because they only deal with
documents culled from files which would be designated. As to the re-
maining, 24, the majority of the documents that are involved in the
lawsuit would be taken out of the controversy.
[An updated and more complete response to this question follows:]
Mr. Mayerfeld submits the following information to amend his response to
the Chairman's question concerning the potential effect of S. 1324 on pending
lawsuits.
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There are now 69 currently active lawsuits under the Freedom of Information
Act in which CIA is a defendant. From among these, it is believed that 39 litiga-
tions would be unaffected if S. 1324 is enacted.
Although, on a basis of a preliminary examination I had believed that 22 cur-
rently pending lawsuits would be dismissed entirely because they only involved
documents found in files that are likely to be designated as exempt from search
and review under S. 1324, a closer look into these litigations now leads me to
conclude that I cannot with certainty state how many, or if indeed any, of these
22 would be dismissed. Some of these cases involve issues such as fee waivers or
attorneys' fees which would not be affected by this bill. Others involve issues
such as the scope of the search. One case concerns the question of whether or
not the fact of the existence of a given special activity is classified. Several law-
suits which had been included in the original number of 22 lawsuits expected to
be dismissed, concern documents culled from files likely to be designated but,
inasmuch as the designation process has not yet taken place, I cannot with cer-
tainty state that all the records involved in these lawsuits would be found only
in designated files.
In addition, with respect to the remaining 8 lawsuits that will also be affected
by the enactment of S. 1324, there may be a narrowing in scope and simplifica-
tion of issues, however, the impact of this legislation on each of these individual
lawsuits cannot be predicted with certainty at this time.
The CHAIRMAN. Thank you. How many full-time positions are as-
signed to handlin FOIA requests in each component and subcom-
ponent of the CIA
Mr. STRAWDERMAN. We have 56 positions allocated to FOIA, but
that is not a good measure really of the wvorkyears that we devote to
it. We actually devote 128 workyears to the effort, which is really the
hours worked of more than 200 people working on the project through-
out the course of a year.
I would judge that over 100 of those people are professionals with
other disciplines in intelligence that are pulled away from their regu-
lar duties and work on FOIA. So I guess a better measure of the effort
that goes into FOIA is the workyear effort that we provide each year,
and that was 128 for 1982.
The CHAIRMAN. I have heard that the FBI has several hundred
people.
Mr. STRAWDERMAN. I believe that is correct.
The CHAIRMAN. And these several hundred people do nothing but
FOIA requests at a cost of about $15 million a year.
Mr. STRAWDERMAN. Our cost runs about $3.9 million a year, I believe.
The CHAIRMAN. Oh, well, you are cheap. [Laughter.]
Do you have any idea how many person years or other personnel are
devoted to handling such requests in each component or subcomponent
of the CIA?
Mr. STRAWDERMAN. Well, the personyears we would refer to are the
workyears, or 128. A predominant number of those are in the Direc-
torate of Operations, where we judge about 70 or so are involved in
FOIA. In other areas, Science and Technology, there are two; in the
Intelligence area there are four; and the others are in the Directorate
of Administration; and the DCI area or the independent offices of the
Agency.
A lot of those are involved in the legal processes of administrative
appeals and the litigations in the DCI area.
The CHAIRMAN. ,John, I do not know if you have had time to think
about this, but what specific steps does the CIA intend to take when
this bill is passed to reduce the backlog in processing FOIA requests
and to improve CIA responsiveness?
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Mr. MCMAI-ION. I think, Mr. Chairman, that we do realize we have
an obligation if we are granted the relief that we seek under this bill to
cut down on the backlog as quickly as possible and we will certainly
take nneaures to do that. I think if we can eliminate a number of the
operational files, that will go a long way in reducing the work load
just in itself.
The CIIAIRNAN. Under Executive Order 12356, will designated op-
erational files remain subject to search and review under this legisla-
tion?
Mr. McMAHON. Yes.
Mr. MAYERFELD. Yes, they do, Mr. Chairman.
The CHAIRMAN. This is a little bit farfetched, but more and more of
this type of activity is taking place, and it is taking place, in my opin-
ion, to the detriment of our intelligence community: Have you released
a clandestine services history of "The Berlin Tunnel Operation" to
David Martin, the author of "The Wilderness of Mirrors"? Have you
done that?
Mr. MCMAIION. Yes, sir, we have.
The CIIAnRUAN. How many other such studies exist now and would
they be exempted from search and review under this bill?
Mr. STRAWDERINIAN. I do not have a precise number on those that
exist, but we have given out 67 articles over the last 2 or 3 years in the
studies of Intelligence area. That information is in nondesignated
files and will be subject to search and review under this bill.
The CI-IAIRUAN. It would be subject?
Mr. STRAWDRRMAN. Yes, sir.
The CI-IAIRIrAN. Is there any way you can clamp down on that type
of literary effort, if you can call it that? [Laughter.]
I say that seriously because in my association with the activities of
other intelligence services in other countries they do not allow any-
thing like that. They do not even print calling cards, and, my God, in
this. country you can get away with holy murder.
Mr. MCMAHON. We treat a great deal of the articles that go in the
studies in Intelligence as really training aids, Mr. Chairman, because
we sanitize them from a source and method standpoint. If the docu-
ment is in an unclassified form, even though it is in an in-house docu-
ment, for those articles that we feel have a message to tell to our em-
ployees, we retain the security classification.
So we would review those documents, but we would be able to extract
any revealing or classified information from them as we would under
the existing law.
The CHAIRMAN. I just have one more question. If designated files
contain information concerning possible illegal intelligence activities,
such as violations of Executive Order 12333, would they be exempt
from search and review under this bill?
Mr. MCMAIIoN. No, they would not. The mere process of that illegal
action coming up through the process would place that information
into nondesignated files which would mean that they would be sus-
ceptible to search and review.
The CHAIRMAN. Well, would the CIA support an amendment which
would make it clear that designated files will be subject to search and
review if they concern any intelligence activity which the DCI, the
Inspector General, or General Counsel of the Agency has reason to
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30
believe may be unlawful or contrary to Executive order or Presiden-
tial directive?
Mr. MAYERFELD. Mr. Chairman, in my view such a specific item to
be legislated would be unnecessary by the very definition. If the In-
spector General or the General Counsel or the Director's office has
reason to believe that something may be unlawful, there is documenta-
tion on this particular matter located in those files, and they are not
in designated files.
The CHAIRMAN. Do you have any other questions, either one of you
gentlemen?
Senator LEAHY. Just one note on the Berlin tunnel operation. Some-
times it is not all bad that some of this information becomes public.
In the CIA's own report, in the part that has been made public, it
says:
As a result, the tunnel was undoubtedly the most highly publicized peacetime
espionage enterprise in modern times prior to the U-2 incident. Worldwide re-
action was outstandingly favorable in terms of enhancement of U.S. prestige.
There was universal admiration, including informed Soviets on the technical
excellence of this installation. The lion-communist world reacted with surprise
and unconcealed delight to this indication that the U.S. was capable of a coup
against the Soviet Union and thoughtful editorial comment applauded this indi-
cation the U.S. was capable of fulfilling its role of free world leadership in the
struggle.
It is not all bad that we know some of the things the agency can do.
The Chairman's thrust, of course, was that sometimes the other things
come out, but so much of the Agency's work is so important to us and
yet it remains secret. I wish there were ways that more of the accom-
plishments could be made part of the record, but unfortunately they
cannot.
The CHAIRMAN. Well, I am very happy to report, as I have to your
boss, that returning last weekend from a trip to several European
countries for the purpose of looking into intelligence matters our in-
telligence community is increasingly well thought of. It shows an im-
provement in morale, in how to do things, and I am very proud of the
fact that our intelligence now, in my opinion, ranks right up with the
best.
I want to thank all of you for your help. Do you have another
question?
Senator HUDDLESTON. I guess one other question, Mr. Chairman. I
do not want to duplicate anything.
Mr. MCMAHON. I was going to go. out on a high roll there, Senator.
[Laughter.]
Senator LEAHY. We will adjust the record to show that the last re-
marks of Senator Goldwater will come after this.
Senator HUDDLESTON. I just want to pull together all the loose ends
we can, Mr. McMahon, and there are always some, of course.
This has to do with intelligence product and the policy documents
that are in operational files. Now the theory of the bill is that we can
exempt operational files from search and review for intelligence prod-
uct and for policy documents because that kind of information is kept
in other file systems that duplicate what is in the operational files.
There might be a problem, however, with the theory if some of
those materials are shown to policymakers and then returned for stor-
age to the operational files only. Is it the intent of the bill that the.
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intelligence products stored in operational files will continue to be
subject to search and review, if it was in fact used by policymakers
and analysts?
Mr. MCMAiiox. I think the answer is unequivocally yes. Whenever
there is an occasion sucli as that where a document which came for-
ward and then say was handcarried back to the operational files for
safekeeping, a dummy copy is placed on the Executive Registry which
services the Director's office and my office. So a search there would
reveal the content, an index of where to go to check that.
So it would be maintained outside of the operational file and there
would be an indicator that that information has progressed out of the
operational file.
Senator HUDDLESTO\. So it would then be accessible?
Mr. MCMAIION. It would then be accessible, yes, sir.
Senator HUDDLESTO- . Would you give the committee a report, classi-
fied if necessary, on how you do store that kind of intelligence infor-
mation ?
Mr. McMAIION. We would be happy to.
Senator HUDDLESTON. And on policy documents that go to the Direc-
tor or to the National Security Council, but that still might be stored
only in operational files?
Mr. MCMAHoX. I cannot think of an example, but I know how the
system would work and we would be happy to give the committee an
explanation of that.
Senator HUDDLESTON. All right. Thank you very much.
The CIIAiRILAN. I have several vugraphs for the record and Senator
Durenberger's statement for the record.
[The information and Senator Durenberger's statement follow:]
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Requests Logged.- Responses:
FOIA No Record
Granted in Part
? * Granted
in 'Full
Deni ed in Full
I 252 Canceled
i
2,278 TOTAL
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No Record
Can
With 31%
rjC,f 21%
GIP - Granted in Part
4% DIF - Denied in Full
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Received 6,609 Received 1.0 10
Responses 5,4 7 9 Responses
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552
f f
232_ ? 181 166 252 252
? 1979 1980 1981 1982
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N
a
? ? 1977 ? ? ? 1980 1981 1982
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1975 1976 1977 1978 1979 1980 1981 1982
Mw-yows to date --~ 883-'-'
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1976.1977 1978 1979 1980 1981 1982
went into fitig4tio"-1,
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Impossible ! f and t wquent, ' !
Inadvertent releases.
Percepilon by sources ! i # ! prom
Arduous review procedures I ! I ? tr
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PREPARED STATEMENT OF SENATOR DAVE DURENBERGER ON THE INTELLIGENCE
INFORMATION ACT OF 1983
Today's Hearings on the "Intelligence Information Act of 1983" are part of
a long process. FOIA relief for the CIA was proposed back in 1980, and the Select
Committee held hearings on this issue in 1981. The bill we are considering today
is notably better than those we looked at two years ago. We are all indebted to
our chairman, Senator Barry Goldwater, for the CIA's progress from rhetoric
to realism.
Two years ago, the Intelligence Community was demanding a complete exemp-
tion from the Freedom of Information Act. Now their proposal is more modest :
an exemption for portions of their operational files. Before, intelligence officials
claimed that FOIA was incompatible with an effective intelligence service. Now
they strongly endorse a bill that states:
"The Freedom of Information Act is providing the people of the United States
with an important means of acquiring information concerning the workings and
decisionmaking processes of their Government, including the Central Intelligence
Agency."
As they say in the ads, you've come a long way, baby !
But the journey is not yet over. There are many assurances that must be given
before we can ask the public to accept this retreat from full FOIA accountability.
And there are changes that will have to be made before we can honestly tell the
American people that we have struck the proper balance between secrecy and
openness.
Two years ago, I called this issue one of a conflict of rights, in which each
side had an interesting case to make. I suggested "that finely-honed instruments
will do a better job than meat-axe `reforms'. . . . The executive branch should
not let narrow problems be justifications for broad exemptions." We are on the
way to crafting such a finely-honed bill. But the executive branch may have to
bend a little more if we are to succeed.
The CHArarAN. The next session will be Tuesday morning next week
at 10 in room SD-342.
We stand adjourned. Thank you, gentlemen.
[Whereupon,. at 3:30 o'clock p.m., the committee adjourned, to re-
convene upon the call of the Chair.]
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S. 1324, AN AMENDMENT TO THE NATIONAL SECURITY
ACT OF 1947
TUESDAY, JUNE 28, 1983
U.S. SENATE,
SELECT CODIarITTEE ON INTELLIGENCE,
Washington, D.C.
The select committee met, pursuant to notice, at 10 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. Barry Goldwater
(chairman of the committee) presiding.
Present : Senators Goldwater, Durenberger, Inouye, and Leahy.
The CHAIRMAN. The meeting will come to order.
OPENING STATEMENT OF CHAIRMAN BARRY GOLDWATER
Last week the committee heard the CIA's views on S. 1324, a bill to
amend the National Security Act of 1947. This legislation would re-
lieve the CIA of searching and reviewing certain operational files un-
der FOIA requests. This relief will enable the Agency to become more
efficient so that other FOIA requests may be answered speedily.
I want to take just a few minutes to outline why this legislation is
needed.
In the 8 years since FOIA has been in its present form, the CIA has
worked hard to comply with the act. However, it has been impossible
to keep up with all the requests in the way the act requires. I do not
think Congress really contemplated the burdens FOIA would place
on an intelligence agency.
As we heard in last week's testimony, FOIA mandates that if some-
one requests all the information on a certain subject, all the files have
to be located. In an intelligence agency, most of the information is
classified. But that does not end the Agency's job. An experienced per-
son must go through stacks and stacks of these papers-sometimes they
are many feet tall-just to justify why almost every single sentence
should not be released. If this is not done well, a court could order
the information released.
Now, what has been the result of this burdensome process? Very
little information, if any, is released from operational files when the
requester seeks information concerning the sources and methods used
to collect intelligence. Even then, the information that is released is
usually fragmented.
Also, there is always the risk that there will be a mistaken disclosure
or that some court may order the release of information which could
reveal a source's identity or a liaison relationship. That is why these
most sensitive operational files should be exempt from search and re-
view under the provisions of my bill.
(43)
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It is important to know that this legislation does not frustrate the
essential purposes of the FOIA. Requesters will continue to have ac-
cess to CIA files containing the intelligence product, and to informa-
tion on policy questions and debates on these policies. Additionally,
access to files for individual U.S. citizens and permanent residents who
seek information on themselves will not be affected by S. 1324.
Presently, the wait for a response under an FOIA request to the
CIA takes anywhere from 2 to 3 years. This kind of situation benefits
no one. By exempting these operational files from search and review,
the processing of all other requests can be completed much sooner.
Thus, the public will receive information which is releasable under the
Freedom of Information Act and Privacy Acts in a far more efficient
and satisfying manner.
Today we have witnesses from various organizations that could be
affected by this legislation. We have the Department of Justice, the
Association of Former Intelligence Officers, the American Civil Liber-
ties Union, the Society of Professional Journalists, the American
Newspaper Publishers Association, the chairman and a member of the
ABA Standing Committee on Law and National Security, and the
National Coordinating Committee for the Promotion of History.
We look forward to hearing your testimony.
We have an opening statement from Senator Durenberger.
OPENING STATEMENT OF SENATOR DURENBERGER
Senator DURENBkRGER. Air. Chairman, I thank you very much for
the opportunity and for giving me just a couple of minutes to sum-
marize my statement, which I would like to have made a part of the
record. I will probably be in and out to help you with this hearing.
We are doing a markup on the Clean Water Act this morning.
I was sorry not to be able to be in attendance at the last hearing, and
probably even more sorry when I saw the transcript of the hearing,
because it created some problems for me with this bill. I really believe
that it is possible to balance the needs of the CIA and of outside groups
in a way that will give each side a better deal than it now believes it
is getting.' But I do not think that we have yet quite struck that bal-
ance, and until we do I will have to reserve my support for the bill.
What are the problems, at least for this Senator, with the bill as it
now stands?
First, it could be used to keep the wraps on intelligence abuses.
Second, it would provide exemptions for all intelligence collection
operations, even acknowledged ones, in spite of the fact that these are
often more important than covert actions.
Third, it would exempt material that was declassified or ready for
declassification, thus cutting off important areas of historical research.
I just want to say, with regard to that, that I do not believe in his-
tory for history's sake. I do not believe in history just for the sake of
the people who make their living writing history. But as a person who
has been in and out of various forms of public and private service dur-
ing my lifetime, I find a great deal of benefit particularly in my role
now as a policymaker, in studying both the achievements and the fail-
ures of those who preceded me. For that reason, I 'would accent my
concerns about access to materialfor historical research.
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Fourth, it is apparently intended to prevent any form of judicial
review.
And fifth, it would appear to remove the Freedom of Information
Act as a means by which bereaved families can seek information about
family members who have died under mysterious circumstances dur-
ing or after service in the CIA.
Aside from the provisions of the bill itself, other concerns remain.
First, we need concrete assurances that the backlog of FOIA request
cases will be ended and the CIA will handle FOIA requests with more
sensitivity than in the past.
Second, we must be sure that this bill is not the nose of an Intel-
ligence Community camel or a national security inaminouth trying to
get in under the tent. The CIA has assured us that they do not intend
to let other agencies into their bill, but if this is just the first of many
bills for each agency, then we should know about it and consider the
full ramifications of what begins as a narrow bill for part of one
agency.
We should also think carefully about the message this bill sends
to the American people. We in this room may view the bill as a com-
plex compromise, a solution to a conflict of rights. But the people see
it simply as an FOIA exemption. If we want to send a balanced mes-
sage, we would do well to add provisions that clearly buttress FOIA.
Six of us on this committee have cosponsored the Freedom of In-
formation Protection Act, S. 1335, which would do just that.
On the positive side, Mr. Chairman-I do not know why I always
leave these things for the end-I am pleased by the CIA's assurances
that all disseminated intelligence and all policy memoranda will re-
main open to FOIA search and review. I have asked the CIA ques-
tions for the record to pin down those points and I am very confident
that they will be answered satisfactorily. In this respect, congressional
oversight is working.
I recognize the importance of the CIA's acceptance of FOIA as it
applies to nonoperational materials. That is a great step forward. It
compels us to reconcile the differences that I have noted, for we can
still craft a bill that will ease the CIA's burdens while reinforcing
FOIA in its vital role of keeping Government accountable to the
people.
Thank you very much, Mr. Chairman.
The CHAIMAN. Thank you very much, Senator. I think you have
summed up your feelings on this. As usual, you are very fair and to
the point. I am sure we will come out with a bill that we can all live
with.
Our first witness this morning is Ms. Mary Lawton, who is Counsel
on Intelligence Policy of the Department of Justice. Welcome.
STATEMENT OF MARY LAWTON, COUNSEL ON INTELLIGENCE
POLICY, DEPARTMENT OF JUSTICE
Ms. LAWTON. Thank you, Mr. Chairman.
We appreciate the opportunity to appear before the committee in
support of S. 1324. While the bill by its terms relates solely to informa-
tion in the files of the Central Intelligence Agency, it has significance
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for the Department of Justice, which of course represents the CIA in
Freedom of Information Act litigation.
As the committee is aware, the Freedom of Information Act re-
quests to the CIA impose enormous burdens on the Agency and. on
the Department of Justice when litigation ensues. While many agen-
cies are burdened with FOIA requests, the comparted nature of CIA
files and the sensitivity of the information contained in them pose par-
ticular difficulties in searching and processing requested materials.
These difficulties are compounded in litigation.
The Department of Justice can only assign to CIA cases those at-
torneys who have the necessary clearances to deal with the informa-
tion at issue. Working with the CIA, these attorneys must formulate
the sort of public affidavit called for in Phillippi v. CIA and Pay v.
Turner, without at the same time disclosing the very information they
are required to protect.
Often, in order for the courts to appreciate the national security
implications of requested records, extensive classified affidavits ex-
plaining their sensitivity must be filed. The courts in turn must juggle
with the paradox of explaining the reasons for their decisions without
disclosing the underlying facts.
And all. to what end? When the litigation is over, the information
remains classified, just as it was before the request was filed.
If there were any public benefit served by FOIA requests of this
type, consideration of this bill would require this committee to weigh
the benefit against security concerns. With respect to the records cov-
ered by S. 1324, however, we perceive no such benefit.
The CIA must divert valuable intelligence personnel from their mis-
sion to identify and review the records. Processing must be scrutin-
ized to minimize the risk of erroneous release which must jeopardize
sources or diminish the value of the intelligence. Attorneys at the
Agency and the Department spend countless hours preparing docu-
ments. Already heavy court dockets are further burdened by these
cases. Yet in the end the public receives only the bill for this needless
expense.
The findings set forth in S. 1324 essentially recognize that this proc-
ess wastes intelligence community and litigative resources without any
offsetting public benefit. Equally important, S. 1324 recognizes the
problem posed by the perception of those who cooperate with intel-
ligence agencies that protection of information furnished cannot be
insured.
Whether or not this perception is justified, it is real. Congressional
recognition that the problem exists and that it warrants remedy should
help to allay the concern.
I am sure that the committee is aware that the Department of Jus-
tice sought in the last Congress and is seeking in this Congress generic
relief from some of the undue burdens imposed by FOIA on the Gov-
ernment as a whole. We 'are delighted that the Senate Judiciary Com-
mittee has agreed to report S. 774. The need for that legislation, how-
ever, in no way diminishes the need for legislation such as S. 1324.
This bill focuses on the specific protection of CIA sources and meth-
ods and addresses the particiular problems of processing and review-
ing compartmented files. It is, quite properly, an amendment to the
National Security Act of 1947. As exemption (b) (3) of the Freedom
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of Information Act itself contemplates, it addresses the specific need
for protection of an agency's files in the organic act applicable to that
agency.
Only a proposal of this type could address with such specificity the
files to be protected. Precisely because S. 1324 deals with the CIA
alone, it can describe the exempt files in terms which address that
agency's particular filing system. It is entirely appropriate that it be
considered by the committee as separate and distinct from efforts to
secure Government-wide amendments to the Freedom of Information
Act itself.
We have no further comments, Mr. Chairman, other than to reiterate
our wholehearted support of S. 1324 and urge its speedy enactment.
The CHAIRMAN. Thank you very much, Ms. Lawton. I just have a
couple of questions.
Could you describe the kind of affidavits you refer to in P/tillippi v.
CIA and lay v. Turmer?
Ms. LAWTON. They are public affidavits that must be filed in the
court explaining why disclosure of the information, or in some cases
a simple response to the existence or not of the files, would endanger
the national security. And when you are filing a public affidavit, of
course, you cannot lay out in detail the precise reasons. So the wording
of those affidavits is difficult.
In addition, the courts have in some cases required much more elabo-
rate affidavits in camera, protected affidavits, spelling out step by step
how the disclosure of each item would endanger the national security.
And even though those are protected in the court, they too are ex-
tremely difficult to draft because you are trying to protect the infor-
mation and at the same time you are describing it in terms that are
sometimes more elaborate than the document you are trying to protect.
It is a difficult process. The Agency works beautifully with us on
this. We can get it done. We have done it. But it is an extremely dif-
ficult process and one which produces no result in the end.
The CHAIRMAN. This all adds to the length of time?
Ms. LAWTON. Oh, yes, to the length of time and the cost.
The CHAIRMAN. Do you have any particular memory of the ex-
tremely long period taken by the court to come by a decision on these
affidavits?
Ms. LAWTON. I cannot name a particular case, Mr. Chairman, at the
moment. But you do have the situation that has occurred more than
once of the district court deciding that it need not examine the records
in camera, that it is satisfied with the public affidavit. That is appealed
to the court of appeals, the court of appeals says, no, you should have
looked at it. The court of appeals sends it back, the district court looks
at it again, it goes back to the court of appeals.
So you do have cases running 5 or 6 years on this.
The CHAIRMAN. S. 1324 states that the DCI shall designate certain
operational files if they meet a specific definition. Do you think this
designation should be subject to judicial review?
Ms. LAWTON. It would be very difficult, it seems to me, Mr. Chair-
man, for a court which has no knowledge of or experience with the
CIA filing system to second-guess the Director on a description of
whether the files fit the statutory definition.
Now, the act, of course-the bill-does not address it one way or
the other, but courts have, when a bill is silent, been deferential pre-
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cisely because they do not have the kind of knowledge of the filing sys-
tem. I do not have that knowledge. I could not second-guess the Direc-
tor on that designation, and I work in intelligence all the time. I do not
know how a juuge could.
The CHAIRDIAN. When you get down to it, you probably have to go
to a computer anyway, do you not?
Ms. LAWTON. That is it.
The CHAIRDMAN. I have one more question..FBI counterintelligence
would get some benefits from the bill worked out in the Judiciary
Committee by Senators Hatch and Leahy. Could the Justice Depart-
ment give the committee an analysis of that bill, S. 774, so that we can
understand just how it will affect FBI counterintellligence?
Ms. LAWTON. I am not sure I could do it on the spot. We could cer-
tainly supply it for the record, Senator.
The CIIAIRIIIAN. That would be fine.
I wonder if Senator Leahy would like to answer that question.
Senator LEA11Y. I am sorry, Mr. Chairman, I was making a note.
What was the question?
The CI1AIR1rAN. It applied to your bill, S. 774. What prompted the
question was the idea that the FBI counterintelligence could get some
benefits front the bill that you have worked out in your committee and
which has been reported to the floor. And I was asking counsel if she
could give the committee an analysis of S. 774 so that we could under-
stand how it might affect FBI counterintelligence.
Senator LEAI-IY. We have asked some of the same questions of Judge
Webster on that bill. I would rather we use his answer and let him
speak for himself.
In fact, I have a question for Ms. Lawton that, is going to followup
along that line, to point out that we are still talking about different
procedures and different ways of carrying out the procedures.
The Ci1AIRATAN. Would you supply the answer for the record?
Ms. LAWTON. Certainly, sir.
[The material and statement of Mary C. Lawton follow:]
IMPACT OF S. 744 ON FOREIGN INTELLIGENCE AND FOREIGN COUNTERINTELLIGENCE
RESPONSIBILITIES OF THE FEDERAL BUREAU OF INVESTIGATION
As a general matter, S. 774 provides Government-wide relief from the stringent
time limits of the Freedom of Information Act (FOIA), permits agencies to
charge fees for processing requests, as well as for search and duplication, and
permits agencies to retain half of the fees collected to offset part of the cost of
FOIA compliance. The Intelligence Division of the FBI, like all other Government
units, will benefit from these proposals.
There are, in addition, certain sections of S. 774 which have a more direct
impact on the FBI's foreign intelligence collection and counterintelligence re-
sponsibilities.
The bill would limit FOIA requests to U.S. persons. Accordingly, it will no
longer be necessary to process requests from foreign officials or foreign corpora-
tions.
Further, the Attorney General, by regulation, would be permitted to limit or
condition FOIA access by imprisoned felons in the interests of law enforcement,
foreign relations or national defense.
Access to informant record would be barred in circumstances in which a third
party requests access by identifying an individual as an informant. Thus, the
FBI could avoid responding to a request for "your informant file on John Doe"
in a manner which admits the existence of such a file even while denying access to
its contents.
There are several changes to the FOIA exemptions proposed by S. 774 that
will be helpful to the Intelligence Division of the FBI.
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Proposed amendments to exemptions 2 and 7 would make explicit the in-
tent to protect from disclosure investigative manuals and guidelines the avail-
ability of which could jeopardize the investigative process or aid in the circuiu-
vention of law. Such a provision would altord the 11'131's Guidelines for Foreign
Intelligence Collection and Foreign Counterintelligence Investigations greater
protection. The FBI would be able to withhold from public disclosure not only
the classified portions of the guicteliness but also unclassified portions the dis-
closure of which might hinder its ability to investigate. The same would be true
of corresponding FBI Manual provisions.
Other proposed amendments to exemption 7 recognize explicitly that foreign
government agencies may qualify as confidential sources and that information
received from such agencies may be protected. Existing law protects information
received solely from a confidential source and does not indicate whether foreign
government agencies may be treated as confidential sources. The proposed lan-
guage not only affords protection to these sources but also affords them greater
assurance of such protection by the very specificity of language. An added pro-
tection for individual sources is found in another change proposed by S. 774.
Currently information may be withheld if disclosure would endanger the life
of law enforcement personnel. The bill would expand this provision to allow
withholding of information the disclosure of which would endanger any person.
A new exemption, to be added by S. 774, would assist the FBI, as well as
other agencies, in stemming the flow of sensitive technolobgy. It would exempt
from disclosure the type of technical data subject to export control limitations.
Under the current law foreign governments can request such data from the
federal government under FOIA even though they could not obtain it from a
manufacturer unless that manufacturer had an export license.
One other provision of S. 774 which may prove particularly helpful in the
counterintelligence field is an amendment to the FOIA provision requiring that
"reasonably segregable" portions of exempt documents be made available to
requesters. Under the proposed language the FBI would be permitted to con-
sider what other information is available to the requester when deciding what
is reasonably segregable without disclosing the sort of information exempt under
exemptions 1 through 7. For example, if the FBI knew that a requester bent on
disclosing undercover operations previously was engaged in or knowledgeable
about such operations it could consider that knowledge in deciding what infor-
mation could be disclosed to him.
All of these proposed changes in FOIA will, for obvious reasons, assist the
Intelligence Division of the FBI in protecting sensitive information.
[Prepared statement of Mary C. Lawton follows:]
STATEMENT OF MARY C. LAWTON, COUNSEL FOR INTELLIGENCE POLICY
Mr. Chairman and Members of the Committee : We appreciate the opportunity
to appear before the Committee in support of S. 1324. While the bill, by its terms,
relates solely to information in the files of the Central Intelligence Agency, it has
significance for the Department of Justice which, of course, represents the CIA in
Freedom of Information Act litigation.
As the Committee is aware Freedom of Information Act requests to the CIA
impose enormous burdens on the Agency and on the Department of Justice when
litigation ensues. While many agencies are burdened with FOIA requests, the
compartmented nature of CIA files and the sensitivity of the information con-
tained in them pose particular difficulties in searching and processing requested
materials. These difficulties are compounded in litigation. The Department of
Justice can only assign to CIA cases those attorneys who have the necessary
clearances to deal with the information at issue. Working with the CIA, these
attorneys must formulate the sort of public affidavit called for in Phillippi v.
CIA, 546 F.2d 1009 (D.C. Cir. 1976) and Ray v. Turner, 587 F.2d 1187 (D.C. Cir.
1978), without at the same time disclosing the very information they are re-
quired to protect. Often, in order for the courts to appreciate the national secu-
rity implications of requested records, extensive classified affidavits explaining
their sensitivity must be filed. The courts, in turn, must struggle with the para-
dox of explaining the reasons for their decisions without disclosing the under-
lying facts. And all to what end? When the litigation is over the information
remains classified just as it was before the request was filed.
If there were any public benefit served by FOIA requests of this type, con-
sideration of this bill would require this Committee to weigh the benefit against
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50
security concerns. With respect to the records covered by S. 1324, however, we
perceive no such benefit. The CIA must divert valuable intelligence personnel
from their mission to identify and review the records. Processing must be
scrutinized to minimize the risk of erroneous release which might jeopardize
sources or diminish the value of the intelligence.` `Attorneys at the Agency and
the Department spend countless hours preparing documents. Already heavy court
dockets are further burdened by these cases. Yet in\the end the public receives
only the bill for this needless expense.
The findings set forth in S. 1324 essentially recognize that this process wastes
intelligence community and litigative resources without any offsetting public
benefit. Equally important, S. 1324 recognizes the problem posed by the percep-
tion of those who cooperate with intelligence agencies that protection of infor-
mation furnished cannot be ensured. Whether or not this perception is justified,
it is real. Congressional recognition that the problem exists and that it war-
rants remedy should help to allay the concern.
I am sure that the Committee is aware that the Department of Justice sought
in the last Congress and is seeking in this Congress generic relief from some of
the undue burdens imposed by FOIA on the government as a whole. We are de-
lighted that the Senate Judiciary Committee has agreed to report S. 774. The
need for that legislation, however, in no way diminishes the need for legislation
such as S. 1324.
This bill focuses on the specific protection of CIA sources and methods and
addresses the particular problems of processing and reviewing compartmented
files. It is, quite properly, an amendment to the National Security Act of 1947.
As exemption (b) (3) of the Freedom of Information Act itself contemplates, it
addresses the specific need for protection of an agency's files in the organic act
applicable to that agency. Only a proposal of this type could address with such
specificity the files to be protected. Precisely because S. 1324 deals with the CIA
alone, it can describe the exempt files in terms which address that Agency's
particular filing system. It is entirely appropriate that it be considered by the
Congress as separate and distinct from efforts to secure government-wide
amendments to the Freedom of Information Act itself.
We have no further comments, Mr. Chairman, other than to reiterate our
wholehearted support of S. 1324 and urge its speedy enactment.
The CHAIRMAN. Senator, do you have an opening statement or ques-
tions you would like to ask this witness'?
Senator LEAHY. No, I do not, Mr. Chairman. I do have a couple of
questions, but no opening statement.
The CHAIRMAN. You have a few questions? Go ahead.
Senator LEAHY. I should also point out, on the FOIA legislation
that Senator Hatch and I and others tried to work out on the FBI,
that we were primarily concerned with the question of protecting their
informants in organized crime cases. That is somewhat different than
what we have here.
We were concerned that organized crime, Mr. Chairman, has gotten
so sophisticated-it is a multibillion-dollar industry, and uses of com-
puters, accountants, lawyers, and everything else-that criminals could
make inquiries from several different areas. For example, they could
make inquiries of different branch offices and, by putting the bits and
pieces together, try to figure out who a particular informant was.
What we are trying to do is guarantee that that informant's name
could not be disclosed. Obviously it is not going to be disclosed directly,
but we want to make sure there is no way it is going g to be disclosed
inadvertently. Organized crime people tend to play for keeps. It not
only cuts down the enthusiasm of informants if they start finding
some of their fellow informants with lead overshoes, but it also dimin-
ishes the effectiveness of those informants who are suddenly wearing
the lead overshoes. We wanted to cut out that.
Ms. Lawton, along these lines, in the hearings last week I made it
very clear that I did not want this bill to be a prelude to an attempt to
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gain a generalized exemption from FOIA for the FBI, the NSA, DIA,
or any other intelligence agency. The testimony was clear that this bill
is just for the particular situation of the CIA.
Is it your understanding that this bill appplies only to the CIA and
is intended only for the CIA?
Ms. LAWTON. Yes, Senator, it is.
Senator LEAHY. Is it the Justice Department's understanding that
this is not just a prelude to opening it up for other agencies
Ms. LAWTON. It is my understanding that it is agreed throughout
the administration that there will be no amendments proposed by us
to this bill to involve any other agencies.
Senator LEAHY. You said something about judicial review and the
circumspect way the courts would lovK at it. is luuicial review pre-
eluded from the question of whether these files are properly classified?
Ms. LAWTON. Judicial review of classification is not precluded-no.
As you know, under the existing law the standard is that the informa-
tion is in tact properly ciassitieu. 't'hat is the requirement.
Senator LEAHY. What about designation of the files? Is judicial
review of the question of whether they are properly designated
precluded?
Ms. LAWTON. The bill does not address it. That would be left to
the court's own judgment as to whether there was an intent or not of
Congress to preclude judicial review of the designation.
Senator LEAHY. Do you see anything in the bill that precludes
judicial review of the designation?
Ms. LAWTON. It is silent on that, absolutely silent on it. It neither
invites nor bars it in terms of the bill. I think courts would be very
reluctant under just standing judicial practice to engage in judicial
review of the categorization of files of an agency by the head of the
agency, who is the legal custodian of the files.
Senator LEAHY. Would it be your position that the courts should be
reluctant to review that designation?
Ms. LAWTON. Oh, yes, Senator. Whenever we go to court on this,
we always urge them to give the greatest deference to the executive
branch on this.
Senator LEAHY. So your position would be that even though the
law is silent on it, you would urge the court that they not go into a
review of the designation?
Ms. LAWTON. I would not be doing the litigation, but based on the
past record the Department is likely to take exactly that position, yes.
Senator LEAHY. And would it be the Department's position that the
courts are precluded or that the choice is totally theirs?
Ms. LAWTON. That simply has not been addressed.
Senator LEAHY. But the Department well could argue that they
would be precluded.
Ms. LAWTON. Yes. I think a legal argument could be made, based on
existing case law.
Senator LEAHY. So the only way the Department could be stopped
from making such an argument would be to have it written in the
bill itself that the courts are allowed to look at that designation.
Ms. LAWTON. Even then, we would probably make a great deference
argument, unless you told us not to make a great deference argument.
Senator LEAZ-HY. So even if the Congress were to write in that the
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court is allowed to review the designation question, you feel it would
still be the actministration's argument that, notwithstanding, the court
should give great deference to the agency's designation?
Ms. LAWTON. That is an argument we make now, Senator, under
the regular Freedom of Information Act on classification, and I would
assume, yes; it would continue.
Senator LLAIIY, In effect what you would be doing is telling them
not to review the designation.
Ms. LAWTON. Oh, no. Under the existing Freedom of Information
Act, it is absolutely clear that the court reviews the classification.
Senator LEAHY. I am talking about the designation.
Ms. LAWTON. But we still make the argument that they should defer,
give great deference to us, and the same would be true on designation.
That is not to say if you wrote it in that we would urge them not to
review it, but only that we would urge them to review it on a standard
that gives the executive determination great deference.
Senator LEA11Y. As a practical matter, the court normally follows
your argument; does it not?
Ms. LAWTON. Most courts have, yes; in this area.
Senator LLAIIY. And with the language remaining silent, you feel
the Justice Department would be free to argue that they were not to
look at it at all?
Ms. LAWTON. It could make the argument. Again, I cannot predict
what the litigating division will do in litigation arising under a bill
not yet passed. But certainly the argument could be made. I could for-
mulate one as a lawyer.
Senator LFA11Y. Mr. Ma.yerfeld argued last week that the bill does
not provide for judicial review of DCI designation of operational
files. Do you agree with that?
Ms. LAWTON. As it is presently written I think that is quite clear;
yes.
Senator LFAIIY. So if we want to be clear that the court could make
such a review, we have got to write it in. But even if we write it in
Ms. LAWTON. I am not going to urge that, Senator.
Senator LEAHY. I understand, but I am asking you for your legal
opinion here. Even if we do write it in, it would be the Department's
position that, notwithstanding having it there, great deference must
be given to the DCI's designation ?
Ms. LAWTON. Yes; I believe that would be the position.
Senator LLAr1Y. Considering past courts' preferences as well as
precedents in this area, that could pretty well determine there would
be no review of that designation ; is that correct?
Ms. LAWTON. Well, if it says the court shall review, the court, will re-
view. What standard of review it will apply, whether it will substitute
its judgment or go on an arbitrary and capricious or clearly erroneous
standard would vary. But the court would have the review if it were
put there.
Senator LLAHY. In your prepared statement you welcome S. 774 as
reported by the .Judiciary Committee. Let me ask you two questions.
Do you regard S. 1324 as completely independent of S. 774, or do
you see any relationship between S. 774, S. 1324, and the Durenberger-
Leahy bill?
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Ms. LAWTON. I regard it as completely separate and apart, a good
parallel but having no direct relationship with the other bills. The
others are more generic in their terms. They are Government wide.
Senator LEAHY. Is that what you mean when you say that it is en-
tirely appropriate that S. 1324 be considered by the Congress as sep-
arate and distinct from efforts to secure Government-wide amendments
of the Freedom of Information Act itself ?
Ms. LAWTON. Yes, Senator.
Senator LEAHY. 1 have questions for the record, Mr. Chairman, but
I would like to ask one more if I might. Do all CIA operations in the
United States require approval by the CIA or the Justice Department?
Ms. LAWTON. All CIA operations require approval by the CIA. They
do not require approval by the Justice Department.
Senator LEAHY. I meant do all CIA operations in the United States
require approval by the FBI or the Justice Department?
Ms. LAWTON. No, Senator, they do not.
Senator LEAHY. What can they do on their own without FBI or
Justice Department approval?
Ms. LAWTON. Well, overt collection of positive foreign intelligence,
for example, would require no approval front us. That is their mission.
It is not ours. It doesn't require coordination. It doesn't require ap-
proval.
Senator LEAHY. Would the files of any such activity within the
United States be exempted from FOIA search under this bill, or would
they still be searchable?
Ms. LAWTON. I am not sufficiently familiar with the filing system to
tell you that, Senator. You would have to ask the CIA.
Senator LEAHY. Thank you, Mr. Chairman.
The CI-HAIRMAN. Thank you. It is a pleasure to have with us this
morning, Senator Dan Inouye who was formerly chairman of this
committee, and we always welcome his sage advice. I understand you
have a statement you would like to make.
Senator INOUYE. Yes, Mr. Chairman. I have a rather lengthy state-
ment. With your permission I would like to have this made part of
the record.
The CHAIRMAN. It will be.
[Prepared statement of Senator Daniel K. Inouye follows :]
PREPARED STATEMENT OF SENATOR DANIEL K. INOUYE
Mr. Chairman, I am grateful for this opportunity to state my views and hear
testimony from representatives of the government and the public on S. 1324,
the proposed Intelligence Information Act. I especially appreciate your role in
introducing this legislation, and in seeing that some common ground could be
reached among the various interests on this important subject-the accessibility
of records held by the Central Intelligence Agency to search and review, and pos-
sibly release, under the provisions of the federal Freedom of Information Act.
Mr. Chairman, I will make a brief statement at this time, and with your con-
sent enter more detailed comments into the record.
I understand that the provisions of this bill were constructed with the par-
ticipation of officials of the C.I.A. and affected public interest organizations,
especially the civil liberties community. I recognize, therefore, that the exemption
from coverage under the Freedom of Information Act for certain C.I.A. files has
been carefully and narrowly drawn. This is as it should be, since there are impor-
tant interests on both sides-the C.I.A. in the security of its operational records
and the public in the accessibility of certain documents in which there is a public
or personal interest in disclosure.
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At last week's public hearing, at which representatives of the C.I.A. testified
about this bill, a number of arguments were made in its favor. I will not repeat
these arguments here, except to take note of them in stressing the significance of
this type of legislation for our national security.
First, current law imposes on the C.I.A. the requirement to search all its
files-including operational files-in response to requests tinder the Freedom
of Information Act. This is true regardless of the fact that the National Security
exemption of the Act would shield nearly all such documents from disclosure.
This is especially true of operational records, which relate primarily to intel-
ligence source and methods, and which generally do not contain information
which would directly contribute to public debate on foreign policy or other
topics.
Second, the extensive search and review of files prescribed by current law
requires the Agency to divert significant manpower to this task. Due to the
sensitivity of intelligence operations and the compartmentation of related opera-
tional records, regular intelligence officers must fulfill this task in addition to
their other responsibilities.
Third, the existing situation imposes delays on persons seeking information
from the Agency under the Freedom of Information and other Acts providing for
release to the public of Agency records. The lag in processing F.O.I.A. requests is
now said to be 2-3 years.
Fourth, regardless of whether operational records would ever be. released un-
der the F.O.I.A., the prescribed search and review of these records causes the
Agency to have to collate them in response to requests. Assembling these docu-
ments violates the Agency's customary practice of strictly compartmentalizing
its files, especially operational files, on the basis of the need to know principle.
This produces an internal security problem for the Agency.
Fifth, there is the so-called "perception" problem-the problem that foreign
intelligence sources and services may refuse to cooperate fully with U.S. intelli-
gence agencies because they feel that information about their actions may not be
properly handled, or could even ultimately be released-either deliberately or
inadvertently-to the public.
Mr. Chairman, John McMahon-the Deputy Director of Central Intelligence-
reassured members of the Committee at last week's hearing that enactment of
this bill would not significantly affect the actual release of information to the
public by the C.I.A. I believe that the bill has been carefully crafted to achieve
this goal, while it addresses the extremely important security concerns that Mr.
Die-Mahon and the other C.I.A. witnesses described last week.
There remain in my mind, nevertheless, certain questions and concerns about
the scope of the proposed provisions and their application. Perhaps our wit-
nesses today will help us consider these matters and draft such amendments or
take such other legislative action as would help resolve them.
Designation of operational files
The proposed new section 701 (a) of the National Security Act-the essence of
these amendments-allows the Director of Central Intelligence to specifically
designate certain files, which meet the stated criteria in the bill, as operational
files exempt from search and review for public release under the F.O.I.A. Nothing
in the bill provides any instructions on whose decision would be determinative
under this provision, as to whether specific files were properly designated for the
exemption.
Now, Mr. Mayerfeld, the Assistant General Counsel of the Agency who ap-
peared last week, indicated in response to questions that he believed that discre-
tion to designate files under this act would rest solely with the Director. As a
lawyer, I see little ground for this conclusion on the face of the proposed statute.
Perhaps Mr. Mayerfeld was thinking of the citation to the National Security
Act in the same section, or on some more general theory of Executive Branch
discretion in this area.
However, I would like to correct the record in this regard-that as far as I
understand from the language of the bill, there is no definite assignment to the
Director or unreviewable discretion to designate operational files. I believe that
the courts would normally have this authority, just as they have authority under
the F.O.I.A. itself to review whether certain documents withheld from disclosure
on the grounds of national security were properly withheld. I have been in-
formed, in fact, that on at least one occasion, a federal judge has visited C.I.A.
facilities to determine whether certain files had been adequately searched in
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response to a request under the F.O.I.A. A federal judge could similarly deter-
mine for himself whether certain files met the criteria for exemption.
Exclusion of certain covert actions
Similarly, the same section 701(a), contains a proviso that files concerning
certain covert actions-namely those "the existence of which is not exempt from
disclosure under . . . F.O.I.A." could not be exempted. This refers to the case
in which the existence of a covert action has been acknowledged, and its existence
could no longer plausibly be denied-although its operational details could still
be exempt from disclosure under the National Security exemption.
At last week's hearing, Mr. McMahon indicated indirectly his Agency's view
that it would be the President alone who could acknowledge the existence of a
covert action such that it would no longer be exempt under the amendments.
But nothing in the provisions before us makes this clear, and-similarly to the
case of the designation of files by the Director-my own legal interpretation
would be that the question whether a certain covert action was subject to the
F.O.I.A. would be a question of fact subject to judicial determination. The cur-
rent situation in Nicaragua is a good case in point: Although there have been
widespread reports of the existence of a covert action by the United States, the
I'resiuent has not formally admitted the existence of such an operation.
Time limitation on operational designation
Mr. Chairman, I also note that the Director's designation of files as exempt
operational files under the amendments is not constrained by any limits on the
duration of exemption. In this respect, the situation with respect to certain files
accessible under the F.O.I.A. would be similar to that for other categories of
classified material under the President's Executive Order on National Security
Information, which eliminated the requirement of mandatory review of classified
records for potential declassification.
Yet at some point the details of intelligence operations-which ordinarily
would not be within the scope of legitimate public debate on national security-
could become a subject of public interest. Historians and other social scientists
could ultimately use such files-after they were no longer sensitive-to construct
chronicles of the intelligence aspects of important international events. Details
concerning cryptographic successes against Japanese diplomatic and naval com-
munications during World War II, for example, have helped the public to under-
stand better the events that led to the attack on Pearl Harbor and its aftermath
in the war in the Pacific.
I suggest, therefore, that we consider some limitation on the duration of opera-
tional exemptions designated by the Director under these amendments.
Intelligence abuses
Last week, the C.I.A. representaives assured the Committee that information
concerning intelligence abuses-improprieties or illegalities performed by intel-
ligence personnel-would not be exempted from F.O.I.A. review by these amend-
ments. The witnesses indicated that sufficient material on any such occurrences
would be available in non-designated files maintained by the Director, his Inspec-
tor General or General Counsel, or the oversight bodies.
Yet there is some ambiguity about this explanation, since the files maintained
by these offices might not contain all the details of the activities in question, but
simply the procedural records of the investigating office. We may wish to specify,
in the bill, therefore, that no records on intelligence abuses could be exempted.
Privacy Act information
Dir. Chairman, section 701(c) of the amendments specifically provides that
personal information requested by United States citizens or permanent residents
under the F.O.I.A. and Privacy Acts would continue to be processed normally.
In view of the fact that U.S. intelligence activities occasionally affect Americans,
especially abroad, I believe that this is a very important provision. We should
certainly emphasize this protection in our deliberations on the amendments.
Unrecorded documents
Because of their extreme sensitivity, certain intelligence reports would prob-
ably not be entered into normal channels but would be maintained by their origi-
nating unit and disseminated only on a very limited basis. It might be difficult
to search for, or review, such reports under the F.O.I.A. if they are maintained
exclusively in operational files which are designated by the Director. Perhaps
we should seek additional information from the Director, on a classified basis if
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necessary, in order to assure ourselves that certain intelligence reports are not
exempted from F.O.I.A. search and review because they are located only in opera-
tional files.
Designated files of the Office of Security
Mr. Chairman, in the past, as revealed by the Church Committee investigation,
intelligence agencies sometimes went overboard in protecting their interests. The
MERRIMACK and RESISTANCE projects undertaken by the Office of Security
in the C.I.A. involved investigation of domestic political groups that the Agency
saw as posing a threat to the security of its domestic operations. The Office
of Security still has some authority to pursue investigations related to Agency
domestic security under section 2.3(g) of the President's Executive Order on
Intelligence Activities. eW should be sure that the amendments do not allow the
Agency to restrict access to operational files of the Office of Security which could
pertain to such matters.
Is this the administration position?
Mr. Chairman, I and the other members of the Committee greatly appreciate
your sponsorship of this legislation, which is so important and has been so diffi-
cult to devise. We also appreciate the efforts, by the Agency and affected inter-
ests, that have gone into developing it.
In my view, it would greatly relieve the members and the public to be assured
that the provisions we are considering are fully consistent with the policies of
the Administration in this area. I understand that this point was raised at the
hearing last week, and that Mr. McMahon assured the Committee that tile
Agency's support for this bill represented the considered position of the Ad-
ministration. There still seems to be concern, however, that we have not heard
the final word oil this subject and that we will continue to be pressed by the C.I.A.
and other intelligence agencies for relief from the F.O.I.A. and other statutes
providing for the release of government information. I believe the Committee
should reach a clear understanding with the Administration in this regard.
Eliminating backlog and expediting processing of requests
Section 2(b) of the bill states that one of its primary objectives is: "(T)o
provide relief to the C.I.A. from the burdens of searching and reviewing opera-
tional files, so as to enable this agency to respond to the public's requests for
information in a more timely and efficient manner." (Emphasis added.)
Mr. Chairman, I believe that in our continuing oversight of this agency we
should ensure that this objective is realized.
Importance of legislative oversight
On the subject of legislative oversight, Mr. Chairman, it is extremely im-
portant to remember that the organization of the C.I.A. and its procedures for
handling records are largely classified. Although occasionally courts may review
Agency recordkeeping actions, especially in connection with the F.O.I.A., the
basic checks on compliance with legislation safeguarding the public's right to
information in this area is through internal executive and Congressional over-
sight. The Committee should be prepared, in connection with adoption of these
amendments, to perform its oversight function vigorously in this regard.
Conclusion; detailed comments for the record
Mr. Chairman, I would like to conclude my statement by once again compli-
menting you for your central role in devising the carefully drafted provisions
before us. It is a pleasure to serve with you on this Committee and to he part of
your team, helping to safeguard national security while performing the im-
portant duty of legislative oversight in this area. As I mentioned earlier, I also
have several technical comments on the amendments which I would like to enter
into the record. Thank you.
TECHNICAL COMMENTS OF SENATOR INOUYE ON S. 1324
Terminology: "Special Activity"
The phrase used in the proposed amendments for covert actions. "special activ-
ities", is the term used in the old. 1947 National Security Act. There has been a
good deal of legal debate, including opinions of CIA counsel, on the meaning of
this phrase and the extent to which it authorizes covert actions by the Agency.
In view of this uncertainty, it would appear preferable to use a more modern
formulation, such as that adopted by Congress in the 1961 Hughes-Ryan amend-
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ment to the Foreign Assistance Act and in the 1980 Intelligence Oversight Act-
viz., "operations in foreign countries, other than activities intended solely for
obtaining necessary intelligence".
Search and review of compromised sensitive collection operations
The proviso in section 701(a) precluding denial of the existence of certain spe-
cial activities, when they would not be exempt from disclosure under the F.O.I.A.,
is limited on its face to covert actions. The C.I.A. currently admits for these
purposes the existence of two past covert actions-in Guatemala and in connec-
tion with the Bay of Pigs invasion in Cuba.
Occasionally, however, other intelligence operations, such as sensitive collec-
tion operations, may become compromised to the point where their existence
could no longer plausibly be denied by the United States. At this point, it could
be beneficial to have search and review of relevant files for potential release un-
der the F.O.I.A. in light of public knowledge of them and legitimate public in-
terest in their characteristics.
Therefore, we may wish to extend this proviso to include not only "special ac-
tivities" but all "significant intelligence activities" whch have been compromised
to the point defined in the amendments.
Scope of proposed section 701 (a) (2) exemption
Section 701(a) (2) of the amendments would establish as a criterion for desig-
nation of files for exemption whether they were concerned with "foreign intelli-
gence, counterintelligence, or counterterrorism operations". It is not clear on the
face of this language whether covert actions would be included within the scope
of foreign intelligence operations, but I have been informed that C.I.A. repre-
sentatives (chiefly Mr. Neyerfeld) told the Committee staff that they would be.
Further, the only mention of such activities in this section comes in the proviso
further down which addresses the problem of covert actions the existence of
which could no longer be denied.
This construction would appear to result in problems in statutory interpreta-
tion. It may be better to explicitly include covert actions in section 701(a) (2) in
order to make it clear that these activities are subject to the exemption, except
to the extent indicated otherwise in the proviso.
Senator INouYE. At the outset I would like to commend you, sir, for
offering this measure and in so doing bringing together the different
interested parties, especially the CIA and the civil rights community,
in coming up with provisions that seem to show some common ground.
I hope that something can be done.
However, I do have-as I am certain all of us have-a few questions
and hope that these hearings will resolve them. I am sorry I was not
here in the beginning, Ms. Lawton, but if I may I will ask some ques-
tions and if the questions have already been asked will you just tell
me so and I will look over the record.
Last week Mr. McMahon indicated to the committee that the Presi-
dent would have complete authority to admit or deny the existence of
covert actions. I believe his statement is important in' light of a certain
provision in the amendments which would permit the DCI to designate
operational files concerned with covert actions except when the exist-
ence of such action has been compromised and therefore would be sub-
ject to the FOIA.
Do you agree that the President is the only one who can decide
whether an action is covert or not?
Ms. LAWTON. Yes, I do, Senator.
Senator INouYE. Would this determination be subject to judicial re-
view under this measure?
Ms. LAWTON. I know of no way that the determination to proceed
with a covert action would be subject to judicial review. Obviously it
is subject, to reportinn to this committee and to its House crninternart,
but it would be very difficult it seems to me to find a way that the deci-
sion to enter into a covert action and to keep it covert could be gotten
int.n court.
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58
The only way I could visualize it would be a conflict between the
intelligence committees of the Congress and the President in which
case you tend to have the courts saying that is a political question. We
are staying out of it. So I do not see how the courts could get into it.
Senator INOUYE. But it is your view that the President has the sole
authority to decide whether an action continues to be covert even if
the general perception is that it has been compromised?
Ms. LAWTON. Well, he has the initial authority. Under the rules
that establish this committee if I recall them correctly, there is a
mechanism for the committee and the Congress to elect to declassify
information after notice and an opportunity for the Executive to
present its viewpoints and so forth so that there is if I recall the
rules correctly provision for the Congress to declassify certain infor-
mation that has been reported to it and covert action is among the
things that are reported to the Congress.
Senator INOUYE. If Congress should take that step and declassify
certain actions, would that action now clear this so-called covert
action to FOIA search?
Ms. LAWTON. I believe it would, yes.
Senator INOUYE. Notwithstanding the President's insistence that it
is still covert. Ms. Lawton, in reading over the bill I do not see any-
thing that would set a time limit on the duration of an exemption
granted by the DCI or anyone as far as the designated operational
files are concerned.
Similarly the President's Executive order on national security
information has eliminated the previous requirement of mandatory
review of classification after a specified time period. Do you believe
that there should be a limitation on such exemptions?
I believe most European countries, the best known being Great
Britain, have a time limit on the duration.
Ms. LAWTON. Even when the Executive order had a mandatory
declassification review provision though, Senator, there was author-
ity to exempt from mandatory review certain categories of infor-
mation. Information received from foreign governments is one of
them. Sources and methods was another.
I do not think in practical terms or the type of files we are talking
about here that there is any real change because most of those, I think,
were exempted from mandatory declassification review.
Senator INOUYE. Should there be a mandatory review after a cer-
tain period of time? Not a mandatory declassification, but a review?
Ms. LAWTON. In theory I think it is not a bad idea. In practical
terms, given the volume, keeping up with the files that are current,
at least in our experience, is more than you can handle. Going back
through old files on a periodic basis for general principles is virtually
impossible practically, although in theory, a good idea.
Senator INOUYE. Then what you are suggesting is that for time
immemorial no one is supposed to go through these files? History
may become a bit distorted as a result of that.
Ms. LAWTON. I realize that, and it is not something I am objecting to
on a theoretical basis. It is just that it is very difficult to go through on
a constant basis a backlog of historic files.
Now the Agency at least has the good fortune to only exist from the
1940's onward and, therefore, it only has that many files. When I think
back to the Department which goes back to 1870, the idea of going back
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through our files on a periodic basis appalls me as a practical matter.
But there are categories where this is and can be done. The CIA has
a history program. The State Department has gone through various
files of captured German archives that fell into its possession in a sys-
tematic way to make these public for historic purposes.
In discrete areas I think it is distinctly possible to pick out files of
historic significance and do a periodic review. I believe that is done.
As a total file systemwide prospect, however, I think it is impractical,
desirable perhaps, but impractical.
Senator I\OUYE. The amendments specifically provide that personal
requests for information under FOIA will not be affected. Are you sat-
isfied that these amendments will not limit in any way the right of indi-
viduals to request personal information about themselves being held by
the CIA?
Ms. LAWTON. Yes, I am. The whole Privacy Act access provision.is
utterly untouched by this.
Senator INouYE. So there will be no further restrictions added to
that?
Ms. LAWTON. None at all that I am aware of, Senator.
Senator INOUYE. In the past the Office of Security of the Central
Intelligence Agency conducted improper investigation of Americans
supposedly related to the security of CIA domestic facilities, the so-
called Merrimak and Resistance operations. These amendments I
gather would provide an exemption for the operational files of the
Office of Security.
Are you concerned that this exemption could lead to records of such
improper practices not being accessible for search and review?
Ms. LAWTON. Not really, Senator, because of the alternative mecha-
nisms that now exist. First of all, they would still be subject to research
and review on a privacy access request by individuals.
Second, you have the entire executive branch and congressional over-
sight mechanisms with the reports to the Intelligence Oversight Board,
the reports to this committee, the Inspector General review. Surely
things can go wrong with all the built-in safeguards in the world, but
I think the number of safeguards that exist now as compared to the
time you are talking about would foreclose any likelihood that this
could surface again.
Senator INouYE. I believe as I walked into the hearing room I heard
you respond to Senator Leahy's question by saying that you agreed
with the provisions of this bill and you did not wish to have any amend-
ments made thereto?
Ms. LAWTON. That's correct, Senator.
Senator INOUYE. By that am I to assume that this has the blessings
of the administration?
Ms. LAWTON. Oh, yes. Yes, it does, Senator.
Senator INOUYE. Your present view is that we should act upon a
clean bill with no amendments?
Ms. LAWTON. I never tell the Senate how to legislate, Senator, but we
like it the way it is.
Senator LEAHY. Everybody else does. Feel free. [Laughter.]
Never successfully, Senator.
Senator INOUYE. Ms. Lawton, if I may I would like to submit a few
other questions for your response.
Thank you very much. Thank you, Mr. Chairman.
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6.0
The CHAIRMAN. Thank you. I want to thank you too, Ms. Lawton.
That was most helpful.
Ms. LAWTON. Thank you, Senator.
[The questions and answers follow:]
1. DISCRETION TO DESIGNATE OPERATIONAL FILES
The proposed amendments basically permit the Director of Central Intelligence
to designate certain specific files as operational files, exempt from search and re-
view under the F.O.I.A. Nothing in the bill itself specifies the scope of this delega-
tion of authority to the DCI. Last week, however, Mr. Meyerfeld of the CIA's
legal office stated that he believed the Director would have unreviewable author-
ity under the amendments to designate operational files.
Do you agree that the Director would have complete discretion to designate
specific operational files under these amendments?
To what extent would there be judicial review of a determination by the Di-
rector that certain files were operational and therefore exempt from document
search and review under the F.O.I.A.?
II. ADMISSION OF THE EXISTENCE OF COVERT ACTIONS
The amendments would permit the DCI to designate operational files con-
cerned with covert action, except when the existence of such an action had been
compromised and would therefore be subject to review under the F.O.I.A. Last
week, Mr. McMahon stated before the Committee that the President would have
complete authority to admit or deny the existence of covert actions.
Do you agree that it would be only the President who could decide whether
the United States government can no longer deny the existence of a certain
covert action?
Would this determination be subject to judicial review based on the facts of
the operation and public knowledge of it?
III. TIME LIMIT ON OPERATIONAL EXEMPTION?
The proposed amendments contain no time limit on the duration of an exemp-
tion granted by the Director to designated operational files. Similarly, Presi-
dent Reagan's executive order on national security information has eliminated
the previous requirement of mandatory review of classification after a specified
time period.
Should there he a limitation on such exemptions?
What should it be?
It seems to me that selected declassifications of a historical nature-such as
U.S. communications intercepts of Japanese diplomatic and naval messages
during the Second World War-have been a significant historical interest for
professional historians and the public.
How would you describe the public's interest in the details of historical
intelligence operations?
IV. INTELLIGENCE ABUSES
C.I.A. witnesses last week stated that information on "intelligence abuses"-
namely illegalities or improprieties committed by intelligence personnel-would
ordinarily be contained in non-exempt files of the Director, his Inspector General
or General Counsel, or oversight bodies.
Is the Agency satisfied .that these provisions will not result in withholding of
relevant investigatory information from journalists?
V. PRIVACY ACT REQUESTS
The amendments specifically provide that personal requests for information
under the F.O.I.A. and Privacy Act will not be affected.
Are you satisfied that these amendments will not limit in any way the right of
individuals to request personal information about themselves being held by the
CIA?
VI. UNRECORDED DOCUMENTS
C.I.A. witnesses informed the Committee last week, that there were ways to
ensure that certain highly sensitive intelligence reports would not be located only
in operations files and therefore not be reviewable under the F.O.I.A. (Such docu-
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ments would include those in which intelligence sources or methods would be
apparent.)
In the Agency have you observed that they are aware of the existence of such
documents and their contents even when they are not stored in regular files?
In the past, the C.I.A.'s Office of Security conducted improper investigations
of Americans, supposedly related to the security of C.I.A. domestic facilities.
(These were the so-called Merrimack and Resistance operations.)
The amendments would provide an exemption for the operational files of the
Office of Security.
Are you concerned that this exemption could lead to such records of improper
practices not being accessible for search and review?
VIII. IS THIS THE ADMINISTRATION POSITION?
There have been a number of efforts over the years to exempt the C.I.A. from
the provisions of the F.O.I.A. and similar statutes. Last week, Mr. McMahon
spoke on behalf of the Agency in stating his belief that the Agency's support
for these amendments represented the Administration's position, and that we
should not expect further requests along these lines. Senator Goldwater also
described his communication with the President in which the President indi-
cated his support for this approach.
Are you convinced that this bill represents the Administration's definitive ap-
proach to resolving this problem?
Ix. ELIMINATING BACKLOG AND EXPEDITING REQUESTS
Section 2(h) of the bill states that one of its primary objectives is:
"[T]o provide relief to the C.I.A. from the burdens of searching and reviewing
operational files, so as to enable this agency to respond to the public's requests for
information in a more timely and efficient manner." (emphasis added)
Will the C.I.A. use this legislation to expedite the process of search and
review under the F.O.I.A?
X. REVIEW OF INFORMATION ON COMPROMISED COLLECTION OPERATIONS
Section 701(a) of the amendments precludes denial by the C.I.A. of certain
"special activities" (or, covert actions) when they would not be exempt from
disclosure under the F.O.I.A. This would occur when the existence of such an
action is so well known that the C.I.A. could no longer deny it.
Is there any good reason to limit this clause to covert actions?
Wouldn't historians also have interest in intelligence collection activities which
could no longer be denied-such as the U-2 missions of the 1950's?
The CHAIRMAN. Our next witness is Maj. Gen. Richard Larkin, U.S.
Army Retired who is president of the Association of Former Intelli-
gence Officers, and I understand that General Larkin has some time
constraints so we promise to keep any questions to a minimum.
General, you may fire away.
STATEMENT OF MAJ. GEN. RICHARD LARKIN, PRESIDENT, ASSO-
CIATION OF FORMER INTELLIGENCE OFFICERS; ACCOMPANIED
BY JOHN S. WARNER, LEGAL ADVISER, AFIO; AND WALTER J.
PFORZHEIMER, FIRST LEGISLATIVE COUNSEL, CIA
General LARKIN. Good morning, Mr. Chairman and members of the
committee, I appreciate the privilege of testifying before you today on
S.1324
.
I am here as president of the Association of Former Intelligence
Officers, AFIO, some 3,500 veterans of the military intelligence serv-
ices, the CIA, the FBI, the NSA, the DIA, the State Department, and
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other intelligence entities. With me today are AFIO's legal advisor
and former General Counsel of CIA, John Warner, and Walter Pforz-
heimer, CIA's first legislative counsel.
Since my predecessor as president of AFIO, Jack Maury testified
before the committee in July 1981 on this matter, the tasks of our in-
telligence agencies have continued to grow in importance and com-
plexity. The substantial damage already inflicted on our intelligence
efforts by FOIA must be repaired and corrected.
You have had ample testimony by the CIA, by NSA, by the FBI,
and other intelligence entities that sources of information, agents, and
foreign intelligence services have refused to cooperate because of their
fears and lack of confidence that our intelligence agencies can keep
such relationships truly confidential because of the Freedom of In-
formation Act.
It seems unnecessary for us to detail the effects and burdens placed
upon our intelligence agencies by FOIA. It does seem appropriate to
quote from Judge Gerhard A. Gessell's opinion when he granted the
CIA's motion for summary judgment of dismissal of the FOIA case
brought by Philip Agee.
After the Judge had conducted a random in camera review of 8699
documents he said and I quote :
As far as can be determined this is the first FOIA case where an individual
under well-founded suspicion of conduct detrimental to the security of the United
States has invoked FOIA to ascertain the direction and effectiveness of his gov-
ernment's legitimate efforts to ascertain and counteract his effort to subvert the
country's foreign intelligence program. It is amazing that a rational society tol-
erates the expense, the waste of resources, the potential injury to its own security
which this process necessarily entails.
The partial relief for CIA from FOIA provisions afforded by
S. 1324 leaves three specific problems which we believe warrant con-
sideration by this committee. No. 1, the time limits for intelligence
agencies to respond to requests which when not met convey the author-
ity to file suit have been demonstrated to be unrealistic and should not
be in the basic law.
Any person or group including convicted felons and representatives
of hostile intelligence services can make a FOIA request and then file
suit in U.S. courts. It seems to us to be the ultimate absurdity to accord
the head of the KGB or other foreign agents the legal authority to
request documents from the CIA and then to file suit in U.S. courts to
enforce such a request.
Three, the provision for de novo review by the judiciary added in the
1974 amendment to FOIA was vetoed by President Ford because he
considered it to be unconstitutional. A judge who simply disagrees
with the experience and expertise of the executive branch as to what is
classified is authorized to release such information. This provision is
in our view a usurpation of the intelligence responsibility constitution-
ally vested in the President.
For all the above reasons,. AFIO recommends, as it did 2 years
ago before this committee, that CIA, NSA, and the FBI be exempted
from all of the provisions of the Freedom of Information Act and that
the President be authorized to designate other intelligence components
as similarly exempt. Such a total exemption leaves available to Ameri-
cans their rights under the Privacy Act to inquire about files main-
tained concerning them. Also historians and scholars who are citizens
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and permanent resident aliens may request mandatory review for de-
classification of documents under the provisions of Executive Order
12356.
In view of our understanding of the administration and CIA sup-
port of S. 1324 we do not oppose its approval, but we strongly urge
that the other entities of the intelligence community be accorded sim-
ilar treatment as is CIA. In this respect it would appear appropriate
for the committee to hear testimony from other parts of the, intelli-
gence community to make a judgment on their possible coverage under
S. 1324.
I should like to add here, Mr. Chairman, that three other organiza-
tions have authorized me to state that they are in full agreement with
the views of the Association of Former Intelligence Officers as just
expressed. These organizations are: The Society of Former Special
Agents of the FBI, the American Security Council, and the National
Intelligence Study Center.
I would like to thank you for this opportunity to present the views
of the AFIO on this most important matter. My colleagues and I will
be glad to attempt to answer any questions.
The CHAIRDxAN. Thank you very much, General.
Senator Inouye.
Senator INOUYE. Thank you very much, Mr. Chairman. On item 2,
sir, has there been a case where the head of the KGB or a member of
the KGB or. any foreign agent has requested documents from the CIA
and then filed suit in the courts to enforce such a request?
General LARKIN. Not to my knowledge, sir, but the possibility exists.
Senator INouYE. Does that possibility exist today'!
General LARKIN. Yes, sir.
Senator INOUYE. On time limit, what would you consider to be a
reasonable time limit for intelligence agencies to respond to requests?
General LARKIN. Sir, I think the most appropriate answer to that
question would cone from the agencies themselves and'it is based now
upon an historical record of experience and I think they could prob-
ably give you a very accurate and a very realistic time limit.
Senator INOUYE. Apparently the intelligence agencies have no quar-
rel with the provisions in the measure at this time or the time limits as
they exist. Are you aware whether they are concerned?
General LARKIN. I am aware that they are concerned. I am not
aware as to whether or not they are sufficiently concerned as to express
their views and to make that a part of this particular legislation, sir.
Senator INOUYE. Is it the belief of your organization and all others
that judicial review is a usurpation of the intelligence responsibility
constitutionally vested in the President?
General LARKIN. It is the view of our association and those that I
represent here today. That is correct, sir.
Senator INOUYE. Then in your mind there should be no review what-
soever as to the Director's action.
General LARKIN. As the previous witness testified, Senator, it is a
case of whether or not a member of the judiciary has the background
and experience to make a determination as to whether or not something
is classified or properly classified as opposed to an experienced pro-
fessional.
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Senator INounE. What are your thoughts on the procedure that is
now available in the Congress to declassify information?
Mr. WARNER. If I may, sir, I don't know the exact procedure but I
have read it a number of times. I think it is a reasonable compromise
between the dilemma of a President standing on one side and the Con-
gress standing on another, and it is a reasonable compromise. It really
becomes a political question at that time.
I think the rules embodied in the legislation, the rules of the commit-
tees and the Accountability Act, I think it is a reasonable situation.
Senator INourE. Thank you very much. Thank you, Mr. Chairman.
The CHAIRMAN. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman.
FOIA is not forcing the CIA to release sensitive intelligence infor-
mation; is it, General?
General LARKIN. No, sir. I do not believe it is, sir.
Senator LEAHY. Can you give us some specific examples of any harm
done to the CIA through FOIA?
General LARKIN. Sir, those examples I think should come from an
active member of the CIA. I can give you some personal impressions of
my previous service not in the CIA but in the intelligence arena.
Senator LEAHY. Go ahead.
General LARKIN. Where there were indications of a lack of confidence
in a source that he would be protected, that is, his particular name
would not surface, that his country of origin would not surface, that
the case would be handled properly, and it was because of his knowl-
edge of the fact that the Freedom of Information Act did exist.
Senator LEAHY. Do we get this kind of concern, for example, from
Great Britain?
General LARKIN. Sir, I think it would be preferable to ask the active
agency to answer that. In my particular case I could answer that, but
I would rather not answer it in open session.
Senator LEAHY. I understand. A thought occurs to me. I heard some-
body testify once from the agency who used Great Britain as an exam-
ple. I wanted to make sure that the concerns were not coming from any-
one of the four or five moles planted by the Soviet Union at the top
levels of the British intelligence that have been disclosed in the last
year or so.
I would hope that we might tell certain countries that we also have
some concerns and problems about what occurs there even if they don't
have a FOIA. In fact, after hearing some of the problems that have
occurred in other intelligence services I wish they had a FOIA statute
so we could look into how badly others got fouled up, without naming
any particular country now.
I also would think that perhaps a two-pronged effort on our part
might overcome concern that some countries may express to us. One is
to give them a real education on what is involved in FOIA, second is to
explain to them the advantages they enjoy from the material we share
from our vast resources and conversely the disadvantages they might
experience if we decided to stop sharing some of those resources, re-
sources which they would never have available to them otherwise.
I certainly would not want to suggest to these countries that intel-
ligence sharing requires a strict quid pro quo, but it is useful to re-
mind them periodically that we do have resources in some areas that
they will never have.
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Thank you, Mr. Chairman.
The CHAIMAN. General, please answer this question from your
military background. If CIA operational files are exempt from FOIA
but operational files of military intelligence and counter intelligence
are not, do you think this gives the CIA a greater ability to operate
secretly? And if so, is this kind of advantage for CIA over military
intelligence and counter intelligence a good idea?
General LARKIN. Sir, I don't think the military agencies look upon
the CIA as having an advantage or disadvantage regardless of their
operational files, protection or nonprotection, because the CIA is in
fact the senior of the services as far as their status in the intelligence
community. As you know, the DCI heads all the intelligence com-
munity and not just the CIA.
I do not believe that the services, and again I cannot speak for the
services, but I do not believe that they would interpret this act as giv-
ing the CIA a "undue advantage in the game." I cannot help but feel
that the services also need this in certain respects for possibly similar
type files.
The CHAIRMAN. It does not cause any problems, then.
General LARKIN. I don't believe so, sir.
The CHAIRMAN. Do you know of any other country in your exper-
ience that has any law similar to FOIA?
General LARKIN. No, sir. I do not.
The CHAIRMAN. I think we are the only country in the world.
General LARKIN. I believe we are the only country, sir.
The CHAIRMAN. But other countries are allowed to spy on everybody
and their brothers. I can testify to your comments relative to the de-
creasing lack of confidence. Than is one of the first questions I run
into wherever I go in this country to talk with intelligence people
regardless of whether they are ours or some other country's.
They are growing more and more reluctant to cooperate if you want
to put it that way.
General LARKIN. Yes, sir.
The CHAIRMAN. I just have one other question for someone with
an interest in history. Do you see any value in historical research
and writing on the role of intelligence in American history. For exam-
ple. there are books about OSS and SIGTNT during World War II
that have been based on access to declassified operational files?
General LARKIN. Yes, sir. I see tremendous value in that. I see
tremendous value in our educational system as well as in our political
system ; yes, sir.
The CHAIRMAN. I think the recent two books on OSS have been
extremely helpful.
General LARKIN. Yes, sir, and those books in fact, sir, are being
used in some cases as textbooks by the universities who are teaching
intelligence as a subject.
The CHAIRMAN. Yes; do any members of the staff have any
questions ?
Thank you very much, General. I know you are pressed for time.
We appreciate your being with us.
[Prepared statement of Maj. Gen. Richard Larkin follows:]
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PREPARED STATEMENT OF MAJ. GEN. RICHARD X. LARKIN, USA (RET.), PRESIDENT,
ASSOCIATION OF FORMER INTELLIGENCE OFFICERS
Mr. Chairman and Members of the Committee : I appreciate the privilege
of testifying . before you today on S. 1324 which amends the National Security
Act of 1947, by adding a new Title VII which would afford the Central Intel-
ligence Agency a measure of relief from certain provisions of the Freedom of
Information Act. I am here as President of the Association of Former Intelli-
gence Officers (AFIO)-some 3500 veterans of the military intelligence serv-
ices, the CIA, the FBI, the NSA, the DIA, the State Department, and other
intelligence entities. With me today is AFIO's Legal Advisor and former General
Counsel of CIA, John S. Warner, and Walter J. Pforzheimer, CIA's first
legislative counsel.
Since my predecessor as President of AFIO, John M. Maury, testified before
the Committee in July 1981 on this matter the tasks of our intelligence agencies
have continued to grow in importance and complexity. The substantial damage
already inflicted on our intelligence efforts by FOIA must be repaired and cor-
rected. You have had ample testimony by CIA, NSA, FBI and other intelligence
entities that sources of information, agents and foreign intelligence services have
refused to cooperate because of their fears and lack of confidence that our intel-
ligence agencies can keep such relationships truly confidential because of the
Freedom of Information Act.
It seems unnecessary for us to detail the effects and burdens placed on our in-
telligence agencies by FOIA. It seems appropriate to quote from Judge Gerhard
A. Gesell's opinion in granting CIA's motion for summary judgment of dismissal
of the FOIA case brought by Philip Agee. (Agee v. CIA, 524 F. Supp. 1290,
17 July 1981). After the Judge conducted a random in camera review of 8,699 CIA
documents, he said:
"As far as can be determined this is the first FOIA case where an individual
under well-founded suspicion of conduct detrimental to the security of the United
States has invoked FOIA to ascertain the direction and effectiveness of his Gov-
ernment's legitimate efforts to ascertain and counteract his effort to subvert the
country's foreign intelligence program. It is amazing that a rational security
tolerates the expense, the waste of resources, the potential injury to its own
security which this process necessarily entails."
The partial relief for CIA from FOIA provisions afforded by S. 1324 leaves
three specific problems which we believe warrant consideration by this Com-
mittee.
1. The time limits for intelligence agencies to respond to requests, which,
when not met, convey the authority to file suit, have been demonstrated to be
unrealistic and should not be in the law.
2. Any person or group, including convicted felons and representatives of
hostile intelligence services can make an FOIA request and then file suit in
U.S. Courts. It seems to us the ultimate absurdity to accord the head of the
KGB, or other foreign agents, the legal authority to request documents from
the CIA and then to file suit in U.S. Courts to enforce such a request.
3. The provision for de novo review by the judiciary, added in the 1974
Amendments to FOIA, was vetoed by President Ford as being unconstitu-
tional. A judge who simply disagrees with the experience and expertise of
the Executive Branch as to what is classified is authorized to release such
information. This provision is in our view an usurpation of the intelligence
responsibility constitutionally vested in the President.
For all the above reasons, AFIO recommends, as it did two years ago before
this Committee, that CIA, NSA and the FBI be exempted from all of the provi-
sions of the Freedom of Information Act and that the President be authorized
to designate other intelligence components as similarly exempt. Such a total
exemption leaves available to Americans their rights under the Privacy Act
to inquire about files maintained concerning them. Also, historians and scholars
(citizens and permanent resident aliens) may request mandatory review for
declassification of documents under the provisions of the Executive Order 12356.
In view of our understanding of Administration and CIA support of S. 1324
we do not oppose its approval, but we strongly urge that the other entities of
the intelligence community be accorded similar treatment as is CIA.
It would appear appropriate for the Committee to hear testimony from other
parts of the intelligence community to make a judgment on their possible cover-
age under S. 1324.
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I would like to add here that three other organizations have authorized me
to state that they are in full agreement with the views of the AFIO as just
expressed. These organizations are:
1. Society of Former Special Agents of the FBI, Inc., 24-16 Queens Plaza
South Long Island City, N.Y. 11101.
2. American Security Council, 499 South Capitol Street, Washington, D.C.
20003.
3. National Intelligence Study Center, 1015 Eighteenth Street, NW., Wash-
ington, D.C. 20036.
I would like to thank you for this opportunity to present the views of the
AFIO on this most important matter. My colleagues and I will be glad to attempt
to answer any questions.
The CHAIRMAN. Now, we come to the press. I correct myself. The
next witness is Mark Lynch testifying on behalf of the American Civil
Liberties Union. Mr. Lynch is counsel for the ACLU's division on
national security. We welcome you here, and you may proceed as you
wish.
STATEMENT OF MARK LYNCH, COUNSEL, DIVISION ON NATIONAL
SECURITY, AMERICAN CIVIL LIBERTIES UNION
Mr. LYNCH. Thank you, Mr. Chairman. Thank you for the opportu-
nity to testify today on behalf of the American Civil Liberties Union
with respect to this bill, S. 1324. I have a prepared statement which is
made available to the committee, and I would appreciate it if that
could be made part of the record.
For the purposes of expedition, I will summarize my statement
rather than go through that.
The CHAIRMAN. It will be made a part of the record. You may
proceed.
Mr. LYNCH. Mr. Chairman, I have been involved in litigation with
the Central Intelligence Agency over the Freedom of Information Act
for more than 8 years now, and I have drawn three general conclusions
from this experience. First of all, a substantial amount of useful, his-
torically useful, journalistically useful, politically useful information
is produced under the FOIA by the CIA.
Second, there is a very large body of information dealing with the
nuts and bolts of intelligence sources and methods which, due to the
exemptions that are available under the act, we never get to see. It is
never released. It is invariably withheld, and withholding is invariably
sustained by the courts.
Third, the backlog that has developed at the CIA in responding
to requests is intolerable. Now, on the basis of these three lessons that
I have drawn, I have long thought that there must be a surgical solu-
tion available to solve the problems of everyone that is involved in
this, that the backlog can be reduced, that the CIA could be relieved
of the burden of searching for that kind of information which is
never disclosed and that the public's right to access to the sorts of
information which is disclosed can be preserved. .
Now, this bill and last week's testimony by the representatives of the
CIA in my view were a great breakthrough in'the beginning of a proc-
ess that could achieve a balanced and surgical solution to the prob-
lems that have developed around the administration of the Freedom
of Information Act and the CIA. Indeed, Mr. McMahon, the Deputy
Director of Central Intelligence, has recognized the key to any solu-
tion, workable solution, in this area.
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ful that a great deal of important information like the ULTRA and
the CHAOS documents would be lost to public access. .
Our second problem is with the question of judicial review, which
has been discussed at some length already this morning. I was quite
frankly surprised by the testimony of the CIA last week that this bill
would result in no judicial review of what files are operational, because
there is not really anything in the bill to indicate nonreviewability or
to reverse the presumption of reviewability.
But I think that the interpretation that the Agency has provided
requires clarification and we would suggest that the best way to do that
would be to amend the bill so as to strike the concept of designation and
have the bill proceed in a fashion that files that meet the definition of
"operational" as determined by this committee and the Congress will be
exempt from search and review, rather than to leave that process to-
tally discretionary in the Director.
Now, if that is done-I think there would be judicial review in any
event, even if you did strike the designation, but I think striking the
designation concept would be the best way to get into this. And if there
is going to be judicial review, as in our view there must, of the question
of whether a file has been improperly characterized as an operational
file, review of that issue will not, I think, require document by docu-
ment examination of the documents in the disputed file, and I think
that is what the Agency is really concerned about. They are afraid
that if there is judicial review they are going to be right back to where
they are now, having to justify document by document the kinds of
information which, as I have said, is invariably exempt under the act
anyway.
But I do not think that is going to be necessary. The issue for the
court is whether a particular file has been improperly characterized
as operational, as operational as defined by this committee in the bill.
That would require an inquiry about the nature of the file rather than
an inquiry into the particularized contents of the bill.
So I think that we may not be all that far apart and that a resolu-
tion of this issue is possible.
But in summary, let me say that judicial review is absolutely essen-
tial, because I think that the public simply would not have confidence
that the Agency had not succumbed to the temptation to go overboard
in the designation of files as operational if there were no judicial
review.
The final point I would like to make is that, as I have outlined at
some length in my statement, and I do not need to belabor those ex-
amples in the summary, but an attitude has developed at the CIA
toward processing FOTA requests which is grudging and uncoopera-
tive. It perhaps is understandable, given all of the controversy that
has surrounded the bill and the burden that the Agency says that it
has been subjected to.
But the fact remains that there is a very unfortunate attitude, which
leads to attempts to suspend requests, put requests in limbo. There is
a generally uncooperative atmosphere which all too often pervades the
Agency's processing.
Now, the elimination of the backlog, as the Agency says, will go a
long way toward improying the service the requests get. But I think
there has to be more and this committee has to require more than mere
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That is that there would be no meaningful loss of information cur-
rently available and at the same- time there would be more expedi-
tious response to requests that are pending at the Agency. Now, how
is this accomplished?
It appears to us, and this understanding needs to be verified by the
committee and by this process that the committee is undertaking, it
appears to us that this bill could have this result in the following ways.
First of all, all gathered intelligence will continue to be subject to
the act under the exemptions. However, the sources and methods in-
formation with respect to how that intelligence is gathered would be
exempted from search and review. This, apparently, will relieve the
greatest problems that the CIA has in terms of its processing.
Interests of U.S. persons, that is U.S. citizens and permanent resi-
dent aliens, will be respected because first person requests will con-
tinue to require a search of all files, including operational files. And
covert operations, which can have a great impact on public policy
matters, will be accessible if their disclosure is not exempt under the
Freedom of Information Act.
This provision would codify the current practice. That is to say,
when the CIA can say we can neither confirm or deny our involve-
ment in a covert operation, they do not search. And if the requester
wants to challenge that position, you go to court and you litigate over
whether the existence of the operation is exempt from disclosure. In
fact, we have been involved in a number of litigations on that sort of
issue recently.
Now, to assure ourselves that meaningful information will not be
lost, we would like to submit to the committee a number of examples
of information which we have received in the past under the Freedom
of Information Act from the CIA, to make sure that that information
will continue to be available under the scheme that is proposed by this
bill. We also are anxiously awaiting the CIA's analysis of the impact
this bill would have on pending legislation, so we can see the kinds of
cases that would be affected by this legislation.
Now, we do have a couple of problems with the bill and points on
which we would urge amendment. One area that I am afraid the bill
does not deal with satisfactorily is the question of abuses, investigations
in improprieties or violations of law in the conduct of intelligence
activities.
The way the bill is structured now, to the extent that that kind of
information is in compartments of the Agency which are not subject to
designation, they would continue to be accessible. For example, if the
Inspector General conducts an investigation or the Office of General
Counsel conducts an investigation, the information concerning the sub-
ject of the investigation in those compartments would continue to be
accessible.
However, there have been instances in the past where investigations
have been conducted by sending the investigator into the operational
components to review the file there. Good examples of this were the
initial reports done on Operation CHAOS, which was surveillance of
Americans, and MKULTRA, which was a drug-testing program.
Consequently, we believe that the bill should have an additional pro-
vision providing that the subject of an investigation will trigger a
search of the underlying relevant documents, wherever they may be
located in the Agency. If such an amendment is not added, we are fear-
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elimination of the backlog. Steps have to be taken, commitments have
to be extracted, an intent for vigorous oversight has to be expressed,
that will require the Agency, once it is relieved of this burden of deal-
ing with the operational files, that will require the Agency to respond
in a more cooperative, prompt, and efficient manner.
It can be done. I point, for example, to the Freedom of Informa-
tion program at the Defense Department. While there are, of course,
always exceptions, the record there has been exemplary. The people
that have run the program there are very efficient. They cooperate with
requesters and matters are handled in quite a satisfactory fashion. So
it is possible.
And we feel it is essential for this committee to address this atti-
tudinal problem as well as the backlog problem itself.
That concludes my summary, Mr. Chairman. I would be happy to
answer any questions which members of the committee might have.
[The prepared statement of Mr. Lynch follows:]
PREPARED STATEMENT OF MARK H. LYNCH ON BEHALF OF THE AMERICAN CIVIL
LIBERTIES UNION
Mr. Chairman, thank you for your invitation to the American Civil Liberties
Union to testify on S. 1324, a bill to amend the National Security Act of 1947
so as to remove certain files of the Central Intelligence Agency from the coverage
of the Freedom of Information Act. The ACLU is a nonpartisan organization of
over 250,000 members dedicated to defending the Bill of Rights. The ACLU re-
gards the FOIA 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 limit the FOIA.
However, the introduction of S. 1324 by Chairman Goldwater and Senator
Thurmond and last week's testimony on the bill by Mr. John N. McMahon, the
Deputy Director of Central Intelligence, mark a significant shift in the debate
of the last several years over the applicability of the FOIA to the CIA which we
welcome and commend. The Agency is no longer seeking a total exemption from
the Act ; it is no longer arguing that the Act is inherently incompatible with
the operation of an intelligence service ; and it is no longer arguing that no in-
formation of any value has ever been released by the CIA under the Act. Most
significant of all, Mr. McMahon stated that if this bill is passed "the public
would receive improved service from the Agency under the FOIA without any
meaningful loss of information now released under the Act."
If in fact no meaningful information now available under the FOIA will be
withheld under this bill and if the bill will result in more expeditious processing
of requests, the bill will not be a set-back for the FOIA. However, there are
many questions which must be answered before we can be confident that Mr.
McMahon's assurance will be borne out. In this regard, the ACLU's position is
quite similar to the views expressed by Senators Durenberger, Huddleston, and
Leahy in their statements at last week's hearing on this bill. The assumptions
about the Agency's filing system on which this bill rests must be examined and
substantiated by the Committee. Furthermore, in order to be sure that there will
be no meaningful loss of currently available information, we wish to submit to
the Committee examples of declassified information released by the CIA under the
FOIA which was of public significance. We need to be assured that this type of
information will continue to be accessible under this bill. We are also awaiting
the CIA's analysis of the impact this bill would have on pending litigation.
At this point, I would like to set forth our understanding of what this bill
would do. If this understanding is mistaken or incomplete in any respect, we
request clarification so there will be no misunderstanding over the bill.
1. Certain operational files, the contents of which are now invariably exempt
from disclosure, will be exempt from search and review. However, all gathered
intelligence will be accessible subject to the Act's exemptions, as it is now. The
findings section of the bill states that the organization of the Agency's records
system permits such a division between operational files and gathered intelligence.
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According to last week's testimony, most items of gathered intelligence, whether
"raw" or "finished," are routinely disseminated outside the components identified
in the bill and are stored in nonoperational files. In exceptional circumstances
where gathered intelligence is stored in an operational component, it will be
indexed in a nonoperational file and will be subject to search and review. By
making all gathered intelligence accessible, this bill is a significant improvement
over past proposals which would have made only finished intelligence reports,
such as national intelligence estimates, accessible. This is an important develop-
ment, because finished intelligence may omit raw information that is important
to understanding events.
2. Operational files will be subject to search and review in response to requests
for information concerning "special activities"-i.e., covert operations for pur-
poses other than the collection of intelligence-if disclosure of the existence of
such activities is not otherwise exempt under the FOIA. This provision codifies
the current procedures under the Act. See, e.g., Phillippi v. CIA, 546 F.2d 1009
(D.C. Cir. 1976).
3. All CIA files, including operational files, will continue to be subject to search
and review in response to requests from United States citizens and permanent
resident aliens for information concerning themselves.
4. Only the operational files of the CIA's Directorate of Operations, Directorate
of Science and Technology, and Office of Security will be eligible for exemption
from search and review. Thus, operational information located elsewhere in the
Agency will be subject to search and review. For example, if operational matters
become the subject of policy debates within the Agency (e.g., a debate over task-
ing or other resource allocation) or the subject of investigations into alleged
abuses (e.g., by the Office of the Director of Central Intelligence, by the Intelli-
gence Oversight Board, the Office of General Counsel, or the Office of the Inspector
General), the records of such debates or investigations will be subject to search
and review.
On this last point, we believe that the bill needs further clarification. Last
week's testimony from the CIA indicated that all relevant information concerning
an investigation of impropriety would be in the files of the component that con-
ducts the investigation and therefore would be accessible. However, there have
been instances where investigations have been conducted by sending an investi-
gator into the files of an operational component rather than bringing those files
to the investigating component. For example when the first internal reports on
Operation CHAOS were prepared, the CHAOS files were not removed from the
Directorate of Operations. Other aspects of the so called "Family Jewels" were
also compiled in this manner. Thus, we believe that when an intelligence activity
has been the subject of an investigation for impropriety or illegality, the relevant
underlying files should be subject to full search and review. If the bill is not
amended in this respect, we fear that large numbers of important documents
such as the CHAOS and the MKULTRA files would be removed from the FOIA,
and such a result would be wholly unacceptable.
Another issue which requires clarification is judicial review. Indeed, the CIA's
testimony last week on this matter was quite disturbing. We believe that it is
essential for courts to have the authority to conduct de novo review whenever a
question is raised as to whether a non-operational file has been improperly charac-
terized as an operational file. Without this check, the public will not have suffi-
cient confidence that the Agency has not succumbed to the temptation to broaden
the designation of files beyond the definitions established by the bill.
It was a surprise to hear the CIA assert that there would be no judicial review
on this issue because there is nothing in the bill which precludes judicial review
or reverses the general presumption of reviewability of agency decisions under the
FOIA. However, in light of the interpretation which the Agency's testimony has
suggested, we believe that it is imperative that both the bill and the legislative
history clearly indicate that de novo judicial review is available. In this regard,
we urge that the concept of designation by the DCI be deleted from the bill so
that it is clear that Congress rather than the DCI is setting the standards for
determining which files will be removed from search and review.
Let me stress that the judicial review we regard as essential does not have to
involve the document by document examination which seems to be the Agency's
principal concern. When a question arises over whether the Agency has failed to
search a particular file and the issue is whether that file meets the definition of
operational, a court can resolve the controversy by inquiring about the nature of
the file itself rather than inquiring into its particularized contents.
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Finally, Mr. Chairman, I would like to turn to the CIA's promise that it will
provide improved service to FOIA requesters under this bill. There is a very great
need for improvement on this score. The two to three year wait which the public
must endure has greatly diminished the Act's utility. As Mr. McMahon acknowl-
edged last week, some people have given up making requests to the CIA because
of the backlog.
In addition to the backlog itself, the Agency's attitude toward requesters has
too frequently been grudging and uncooperative. Indeed, the Agency's Informa-
tion and Privacy Division, perhaps at the urging of other components, has devel-
oped a number of strategems to stymie the processing of requests. Here are some
recent examples.
1. On September 24, 1982, a member of the staff of the Center for National Secu-
rity Studies requested CIA studies produced since October 15, 1979 on the subject
of where the insurgents in El Salvador receive their weapons and other support.
The request specifically disclaimed any interest in raw intelligence reports and
limited itself to analytic studies. The CIA made the following response :
"Your request, as submitted, cannot be processed under the FOIA. Under the
provisions of the FOIA, we are neither authorized nor required to perform re-
search or create records on behalf of a requester. Almost without exception, our
FOIA searches, because of the structure of our records systems, must be limited
to those that can be conducted for records that are indexed or maintained under
the name of an individual, organization, title, or other specific entity. Further, if
our searches surface information, we are not permitted to analyze that informa-
tion on behalf of a requester to determine if it is in some way related to an event,
activity, incident, or other occurrence."
The foregoing paragraph is apparently a piece of boilerplate on a word-proc-
essor, for it appears in many Agency responses. By making this response, the
Agency avoids its obligation to process the request. While there may be some
requests that are so vague that such a response is appropriate, it is used in many
cases where it is plainly inappropriate. In this instance, it was astonishing to
suggest that the CIA cannot identify any studies on the source of weapons to the
insurgents in El Salvador, for this is one of the key issues in the debate over
U.S. policy toward that country. Indeed, this request asks for the same sort of
information the President, the Secretary of State, the Secretary of Defense, or
this Committee might request from the CIA. In fact, after further discussions
between the requester and CIA personnel, the Information and Privacy Co-
ordinator wrote on February 17, 1983 that he had arranged for a search of
Agency files for responsive records. However, there should have been no need
for this five month run-around-a process which would deter less experienced
requesters or those without ready access to legal counsel.
2. On February 3, 1983, CNSS requested information on the issue of whether
former CIA employees William F. Buckley and E. Howard Hunt had complied
with their obligation to submit their writings concerning intelligence matters
for prepublication review. The request was prompted by Mr. Buckley's discus-
sion of this topic in the January 31, 1983 issue of The New Yorker. The Agency
replied with another piece of computerized boilerplate :
"So that we can be sure there are no privacy considerations. we need to have
a signed and notarized statement from these individuals authorizing us to release
personal information that otherwise would have to be withheld in the interest of
protecting these persons' privacy rights. These rights are addressed in the Privacy
Act (5 U.S.C. 552a) and the FOIA (5 U.S.C. (b) (6) ). If we should locate relevant
records and did not have such an authorization, we probably would be unable to
release substantially more than already appears in the public domain, such as
that contained in newspapers and the like."
After a letter from counsel pointing out that compliance by public figures
with their prepublication review obligations does not involve privacy concerns
protected by the FOIA and the Privacy Act, the Agency agreed to process the
request. It should have begun processing immediately upon receipt of the request
without the intervention of lawyers and the threat of litigation.
Mr. Chairman, I offer these examples of the CIA's techniques to resist com-
pliance with the FOIA not to refight old battles but to demonstrate that Congress
must take steps to insist that the CIA improve its compliance with the FOIA.
The Agency says that this bill will alleviate its most pressing problems with the
FOIA. In return for that relief the Agency must be required to make prompt,
efficient, cooperative responses to the public. While this bill may eliminate the
backlog, it will not by itself change the Agency's attitude toward the Act. Business
as usual even with the relief provided by this bill will not he enough to insure
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compliance with the spirit of the FOIA. Accordingly, Congress must require a firm
commitment from the Agency's leadership to improve service under the Act and
a detailed plan for accomplishing this objective. Furthermore, this Committee
must make it clear that it intends to make CIA's compliance with the FOIA one
of its oversight priorities.
In summary, if this bill will not result in the loss of information now avail-
able under the FOIA, if it will result in improved processing of requests, and
if the other problems I have identified, as well as any other legitimate problems
which may be identified by others, are resolved, the ACLU will support this bill.
Thank you, Mr. Chairman. I would be happy to answer any questions the
Committee might have.
The CHAIRMAN. Thank you very much, Mr. Lynch. I want to thank
you because I feel you and your organization, which is most impor-
tant in matters like this, has finally joined the team, so to speak, and
we feel more certain of success with your having helped us and backed
us. We certainly will take your recommendations.
Senator Inouye.
Senator INOUYE. Thank you very much, Mr. Chairman.
I was quite intrigued by your last comment, on the attitudinal
problems. Do you not think that it sense of begrudging, as you put it,
may be justified if you are constantly harassed with the so-called
Agee type requests?
Mr. LYNCH. Not with respect to any particular request, Mr. Chair-
man. But I can understand it as a human being, that there is a feeling
of besiegement out there, and that that probably has contributed to
some extent to the attitudinal problems.
I think also the excessive rhetoric surrounding the attempts to get
a total exemption inevitably undermines the attitude of someone who
is working on this as a day-to-day process. If you read in the paper
that there is a crusade on to get a total exemption, it sort of saps your
will to do the pile of work that you have in front of you.
But now that the Agency has backed off that total exemption ap-
proach and is supporting a more surgical and balanced approach,
hopefully the attitude can change.
I do not want to seem to suggest that this attitudinal problem is a
bad faith problem. There may be some examples where there has been
some bad faith, some isolated examples, and I am not sure that a whole
lot would be gained at this point from expensive inquiry into the
causes of this problem.
I think we have in hand a solution that will get us out of this morass.
But what I am asking is that the committee make sure that there are
management plans and techniques to be put in place for the efficient
and cooperative processing of requests.
Senator.INOUYE. Your response to Mr. Mayerfeld's suggestion, that
the DCI's authority to designate operational files was unreviewable,
was to delete the designation feature, was that correct?
Mr. LYNCH. I think that would make it clear, and of course it should
be accompanied by appropriate legislative history.
Senator INOUYE. You suggested that the Congress set the standards
of what is operational.
Mr. LYNCH. That's right. I think it would be a much better bill,
Senator, if the Congress lays out the standards as to what an opera-
tional file which will no longer be subject to search and review is, rather
than leaving it up to the DCI to do it, because that interposes a level
of discretion which can lead to confusion in terms of judicial review,
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and that is perhaps what Mr. Mayerfeld was basing his statements on.
Senator INOUYE. But once the Congress establishes the standard,
someone must have the authority to determine whether a certain action
meets the standard.
Mr. LYNCH. That is right, and that is what we want to see in the
bill as a role for the courts.
Senator INOUYE. Who would be that person?
Mr. LYxcH. Well, when there is a dispute-and disputes over the
scope of the search in an FOIA case do not arise that often. I would
hazard a guess that they do not arise in more than 20 percent of the
cases and maybe not even that many. But when there is a dispute over'
the scope of the search and the requester has some reason to think that
there is a file containing responsive documents to his or her request,
and that that file has been improperly characterized as an operational
file when in fact it doesn't meet the definition set up by the bill, there
ought to be a judicial review of that issue. That is what we are aiming
for.
Senator INOUYE. Last week Mr. McMahon suggested that the Presi-
dent would have complete authority to determine whether a covert ac-
tion has been compromised or not. Now, that is an important state-
ment because if an action is no longer covert it would be subject to
search. Now, do you believe that this bill provides this complete au-
thority to the President?
Mr. LYxcH. No, I do not think this bill does. I think this bill leaves
current law where it is, and certainly if the President acknowledges
CIA involvement in a covert operation it can no longer be asserted
that the Agency can refuse to confirm or deny its involvement.
Similarly, if the Director of Central Intelligence says that the
Agency has been involved in an operation, they, can no longer take that
position. There is a case pending right now dealing with the CIA's
involvement in 1954 in the coup in Guatemala, and I believe that the
key statement that led the Agency to conclude that it had to search
those files was a statement by former Director of Central Intelligence
Turner.
So in past practice the CIA has acknowledged that certainly Presi-
dential statements, statements by the Director of Central Intelligence,
in some cases material published by the Congress-a great many things
that ordinarily would be in this category had it not been for the report
of the Church committee-sometimes those lead to the nonglamorizable
category. And then we argue that there are other instances where CIA
involvement in a particular operation is so notorious, even though
there may not be a high level of acknowledgement, that the Agency
cannot take that position.
But the point is, those are all litigating positions and this bill does
not deal with that. The bill says that if the existence of the operation is
not exempt under the Freedom of Information Act, whatever that may
be, we leave that alone. We will continue to litigate those issues as we
have in the past. But if the operation is not exempt under the act, then
files related to it must be searched. So I think it is a good compromise
and it does not attempt to change existing law.
Senator INOUYE. What are your thoughts on the matter of a time
limit on the duration files would be exempt from search?
Mr. LYxcx. That is a very interesting idea. It is one that has cer-
tainly been brought to the fore by the historians. I tend to deal with
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requesters who are after more timely information and perhaps have not
thought about that as much as I should. I would be eager to hear what
the CIA has to say about what effect some sort of time limit would have
on their work load.
I do know from my experience that there are some very old files
which are withheld in their entirety because the Agency continues to
successfully argue that they are inextricably intertwined with sources
and methods. But I also realize that at some point that argument must
come to an end.
I frankly do not have any firm view on how to balance the interests
of historians in old requests and the interest of the Agency in not hav-
ing to search for material that will inevitably be withheld. But I am
sure there must be a balanced solution to that.
Senator INOUYE. Are you satisfied that this bill will in no way limit
the right of an individual to request personal information under
FOIA?
Mr. LYNCH. I think it is very clear in that regard that a United
States citizen or permanent resident alien who makes a request for doc-
uments about themselves would trigger a search of all Agency files,
including the operational files.
Senator INOUYE. In the past, the Office of Security is alleged to have
conducted improper investigations of Americans, for example the so-
called Merrimack and Resistance operations. I believe the bill would
provide an exemption for the operational files of the Office of Security.
Would that exemption cover records of, say, the so-called Merrimack
and Resistance operations?
Mr. LYNCH. I would hope not, Senator, and if it did we would have a
lot of trouble, because that is an example of a very important disclosure.
I think there are a couple of ways in which the Merrimack files would
continue to be exempt under this bill, but this is the kind of thing that
we need assurance from the CIA on.
First of all, that was the subject of an investigation, a very ex-
tensive investigation by this committee's predecessor, by the Rocke-
feller Commission, various internal investigations in the CIA, and I
would think that particularly if the committee were to add the amend-
ment on investigations that I recommended, the Merrimack files would
be subject to search and review in that regard.
Second, the Office of Security provision as I understand it is para-
graph (a) (3), which deals with investigations conducted to determine
the suitability of potential foreign intelligence, counterintelligence, or
counterterrorism sources. My understanding is that the Merrimack and
Resistance type operations would not meet that definition, and there-
fore those files would not be eligible for designation on that ground.
But again, this is my preliminary understanding. These are the
kinds of things that we need to be assured by the Agency and by the
committee as it develops this bill.
Senator IxouYE. I have been told that your organization and the
Central Intelligence Agency worked together and as a result of this
long-term negotiation came up with this measure. At this juncture,
if the committee should report out this measure as is, would you be
satisfied?
Mr. LYNCH. Let me take that in two parts, Senator.
First of all, I think it is probably important to be clear about this
on the record, that it is not accurate to characterize the exchange be-
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tween the CIA and the ACLU as a long-term negotiation. You have to
understand that I and other lawyers for the ACLU have been litigat-
ing these cases for a long time. We have gotten to know Mr. Mayerfeld
and the other lawyers out there pretty well. We see them down in the
courthouse, we have cups of coffee, like lawyers usually do after they
get through with cases.
And for a long time we have thought that there has been a possi-
bility for a middle ground. The insistence on a total exemption has
made it impossible to go forward on that. But once the Agency got
off of that, there were a number of concepts that we had batted around
and have batted around for a long time, which the Agency was able
to put together into this bill. And it is their bill.
As I said, it is a great step forward. But I think, as I have also said,
there are some further adjustments that have to be made. There are
further questions that have to be answered, and we would not be satis-
fied if it were reported out precisely as it is right now. But we are very
happy that a process is begun that we hope, with some more work and
some more information being put in the public record, we would be
able to support this bill.
And we would like to support a bill, because we would like to get rid
of this backlog and do something about that.
Senator INOUYE. Thank you very much.
The CHAIRMAN. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman.
I was quite interested in the things that you said in answer to Sena-
tor Inouye's questions, especially about designated files. If you were
here earlier, you may have heard some of the questions I asked Ms.
Lawton. I am sure you are aware of the difficulties that I have.
I am still concerned how we can ensure judicial review if the desig-
nated file concept is not dropped. If you have further views on that, I
would certainly be interested in hearing them.
Mr. LYNCH. Well, the concept of designation as it is in the bill now
it seems to me would give the Justice Department an opportunity to
argue that the review of an issue on designation was not de novo, but
was arbitrary and capricious or some more deferential standard, and
I have always been concerned about that.
Apparently from the testimony last week, the CIA thinks that the
concept of designation insulates them from review totally. I disagree
with that as a matter of interpreting this language, but most of all
am very disturbed that now part of the legislative history is that there
will be no judicial review, and I think that idea has to be corrected in
order for us to support this bill.
So striking the concept of designation, which has the added advan-
tage of making clear that it is the Congress rather than the DCI that
is determining what kind of files would be exempt from search and
review, combined with appropriate legislative history, would make it
clear that this action, like all other actions under the act, are subject
to review.
Senator LEAHY. Thank you.
The problem of access to materials concerning abuses and impro-
prieties is an area that bothers most of us. Quite frankly I did not find
the Agency's statements on this last week satisfactory. What sugges-
tions can you offer on behalf of the ACLU concerning ways to insure
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full access to all files relating to investigations of allegations of abuses
or impropriety?
Can we do it with clear language in the legislative history that doc-
uments contained in operational files relevant to an investigation of an
alleged abuse or impropriety cannot benefit from the exemption pro-
vided in S. 1324, or do we have to spell it out in the legislation itself ?
Mr. LYNCH. I think it would be preferable to spell it out in the legis-
lation. I think there should be another proviso as there is for informa-
tion responsive to first party requests, information about covert opera-
tions the existence of which is no longer classified. There ought to be a
further.provision in there, information concerning the subject of an
investigation for impropriety or illegality. Something along those
lines I think is essential.
The Agency's testimony last week, as I understand it, is that the
investigating components, for example the Inspector General, the
Office of General Counsel, will compile all the information about any
investigation. Well, maybe that is true in some cases, but we do know
of some cases historically, "the Family Jewels" for example, where the
Director of Central Intelligence sent his investigators out to the differ-
ent components and they reviewed files. You know, they reviewed the
ULTRA files, they reviewed the CHAOS files.
And what we would like to have made clear is that process of in-
vestigation, even where the files are not brought to the investigating
component, but when they have been subject to investigation, they will
be subject to search and review under this provision.
Senator LEAiir. Did you have a chance to review the discussion I
had with Mr. Mayerfeld last week about the difference between a
frivolous or a nonfrivolous accusation of impropriety?
Mr. LYNCH. Yes.
Senator LEAHY. Are you satisfied with the Agency's position?
Mr. LYNCH. I think I am afraid I do not remember with sufficient
clarity to comment directly. I would like to see the kind of amend-
ment that I have discussed.
Senator LEAHY. Could I ask you to do this? Take a look at that
discussion. We can make it available to you. The transcript may al-
ready be ready, but if it is not we will get you a synopsis. And then
let me ask that question for the record. I would like you to respond.
Mr. LYNCH. Certainly.
Senator LEAHY. Now, I understand you have given some caveats
here today to the bill as written. You do not yet support it, but with
some changes you could. If the changes you suggested are made,
would you then be able to support the bill?
Mr. LYNCii. Yes; and let me further add that, you know, if the
journalists or the historians raise legitimate problems that we have not
uncovered, those certainly ought to be taken into account. We do not
want to arrogate to ourselves the role of total representative of the
public interest here.
Senator LEAHY. I understand. But certainly your position will carry
some weight, as the chairman has already stated, and what I want to
know is just what is necessary to have the ACLU's support of this
legislation.
Mr. LYNci-i. Well, in general, if it can be substantiated that Mr.
McMahon's prediction is correct that this bill-that the CIA is pre-
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pared to live with the bill, which will not result in the loss of any
meaningful information and will result in the expeditious processing
of requests, that obviously is a result which we would welcome and
would support and are very happy to work towards perfecting and
achieving.
Senator LEAHY. To attain this result you feel would require some of
the additions you have discussed?
Mr. LYNCH. That is right. It is not all the way there yet, but it is
a great deal further along than the other previous proposals.
Senator LEAHY. Thank you. I hope we can reach that point.
Of course, there will be those who claim that if we finally get to the
point where the ACLU and the CIA are totally agreed on the bill,
that it is one of two things : Either we have an execllent bill or one or
the other of you did not read it.
I am not asking you to respond to that.
Mr. LYNCH. I think I almost know it by heart now.
Senator LEAHY. I am sure you do.
Thank you very much, Mr. Chairman. Thank you, Mr. Lynch.
The CHAIRMAN. I was going to ask you a question, but it has already
been answered, and satisfactorily, about your comments to the unco-
operative attitude of the CIA. I think you can understand how an
organization that was born out of OSS and born of a desire and need
for intelligence would feel when a large number of their staff sud-
denly is confronted with being eavesdropers, spies, et cetera, on Ameri-
can citizens. And I am glad you responded the way you did.
I have only one question. Are you satisfied that this bill adequately
protects the ability of American citizens to use FOIA to seek informa-
tion about CIA abuses that can be declassified?
Mr. LYNCH. No; I think it needs to go a little further, Mr. Chair-
man, through the addition of a provision that would make it clear
that information regarding the subject of an investigation into impro-
priety or violation of law should be subject to search and review. I
think some sort of amendment along those lines is essential to achieve
the result that you have mentioned.
The CHAIRMAN. Would you be willing to submit some language you
think would be helpful?
Mr. LYNCH. Certainly, Mr. Chairman.
The CHAIRMAN. Thank you very much, Mr. Lynch. You have done
a good job and we thank you for being with us.
Mr. LYNCH. Thank you, sir.
The CHAIRMAN. Now we get to the press : Mr. Steven Dornfeld,
national president of the Society of Professional Journalists, Sigma
Delta Chi, and Charles Rowe, editor and copublisher of the Free
Lance-Star, speaking for the American Newspaper Publishers Associ-
ation.
Welcome, gentlemen. You may proceed as you care.
STATEMENT OF CHARLES S. ROWE, EDITOR AND COPUBLISHER,
THE FREE LANCE-STAR, ON BEHALF OF THE AMERICAN NEWS-
PAPER PUBLISHERS ASSOCIATION
Mr. ROWE. Mr. Chairman, Senator Leahy, the American Newspaper
Publishers Association is deeply concerned about the potential impact
of S. 1324, the Intelligence Information Act of 1983.
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My name is Charles Rowe and I am editor and copublisher of the
Free Lance-Star in Fredericksberg, Va. I am testifying today on be-
half of the ANPA, a nonprofit trade association with nearly 1,400
member newspapers representing some 90 percent of the daily and
Sunday circulation in the United States. Many nondailies are also
members.
Mr. Chairman, the bill being considered here today is a result of
several years of discussion and debate about the need to provide some
relief from the Freedom of Information Act for the Central Intel-
ligence Agency. Throughout this debate, representatives of the news-
paper business have not stubbornly rejected nor ignored the CIA's
pleas for some relief, but they have stated repeatedly that the CIA has
never been forced to turn over to the public any classified information,
a fact that still holds true today.
We have also listened carefully to the Agency's claims that this court
record belies the vast number of hours and amount of money that
went into processing the denied requests that subsequently were up-
held by the courts.
Representatives of the newspaper business met in 1982 with CIA
Director William Casey and other top CIA officials to attempt to learn
more about the unique problems confronting the CIA in its efforts to
comply with the FOIA.
Mr. Chairman, this educational process has been a good faith effort
to understand, and while we believe the language of S. 1324 is an
improvement over previous bills, we still have serious concerns about
the practical effects the passage of this legislation might have on the
public's access to information about the CIA.
S. 1324 would allow the director of CIA to withhold specific oper-
ational files from the search and review requirements of the act. This
power would extend only to those operational files located within the
offices of the Directorate of Operations, the Directorate for Science
and Technology, and the Office of Security of the CIA.
You must realize, Mr. Chairman, that we are relying wholly on
the expertise and judgment of this committee and representatives of
the CIA regarding the extensiveness of the power being given to the
CIA director by S. 1324. We do not know, nor should we, the per-
centage of CIA files affected by this bill.
We have no knowledge of the ease with which information could
be placed in an operational file, thereby exempting it from search and
review. Nor do we have knowledge of the ease with which files could
be designated operational and be sealed off forever from any public
access.
In carefully studying the language of S. 1324, it would appear that
this power is broad. For example, any operational files in the three
specific offices dealing with foreign intelligence, counterintelligence,
or. counterterrorism operations would disappear from existence so far
as the public or the courts are concerned.
The only oversight of the director's actions would be by this com-
mittee and the House Intelligence Committee. While congressional
oversight can be effective, it is only as effective as the amount of
information that Congress receives from the CIA.
Of primary concern is the elimination of judicial review of the
director's decision to designate a file as operational. CIA Deputy
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80
General Counsel Ernest Mayerfeld told this committee last week that
S. 1324 leaves "full discretion to the director. Any other interpreta-
tion," he said, "would turn this legislation on its head."
As Senator Huddleston pointed out last week at the same hearing,
a major principle of the FOIA is that the, courts have the right of
review. ANPA agrees that this is a major and vital principle of the
act. De novo review of CIA decisions under FOIA was made part
of the law with the 1974 amendment. This judicial authority put
teeth into the law and helped make it an effective tool for the public
to try to seek information about CIA functions.
As then Deputy Director Admiral Bobby Inman told this com-
mittee in 1981, the Central Intelligence Agency had received virtually
no FOIA requests prior to the 1974 amendments. The amendments
establishing de novo review and requiring release of reasonably segre-
gable portions of a document led to an explosion in FOIA requests
at the CIA, according to Inman.
To strip the law of this principle of de novo review and of any
judicial review whatsoever is to return us to pre-FOIA days. It would
also return us to the days where the ineffectiveness of the act rendered
it basically useless to the public, a uselessness reflected by the absence
of requests noted by Admiral Inman.
ANPA cannot support this step backward. ANPA believes it vital
that the application of S. 1324 be restricted to the- CIA. It would
appear that the language of the bill, based on the specificity of the of-
fices and files mentioned, covers only CIA. Additionally, it has been
emphasized by CIA officials that the language can only apply to the
CIA because of the unique compartmentalized structure of its files.
Our concern is based on repeated testimony in the past by repre-
sentatives of the Defense Intelligence Agency, the National Security
Agency, and other nonintelligence agencies seeking relief from FOIA.
An identical "neither confirm nor deny" approach of S. 1324 has been
sought in the past by these agencies. There must be an affirmative
statement in the bill or in the legislative history about the exclusive ap-
plication to the CIA of 5.1324.
A primary problem journalists have had in requesting information
from the CIA has been the excessive delays in processing. Proponents
of S. 1324 claim one of the benefits of passage would be a reduction in
the existing backlog of requests. When questioned last week on the spe-
cific steps that would be taken by the CIA to clear up this backlog,
the response was troublingly vague.
We would be very interested in the specific, definitive steps the CIA
will take if this bill is passed in answering those requests for informa-
tion not contained in operational files. For example, the CIA could
administratively determine to confer with requesters by telephone to
clarify the request that has been made, thereby eliminating any
confusion and speeding the processing time.
The other serious backlog is with CIA lawsuits pending in court.
Mr. Mayerfeld testified last week that of the 77 suits before the court,
46 would be affected by S. 1324. Of these, 22' should be dismissed en-
tirely, because they deal only with documents from operational files,
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and the remaining 24 would largely be dismissed because the majority
of documents under question are from designated files.
Specific details about the nature of the information involved in
these lawsuits could be beneficial to members of this committee in un-
derstanding the type of information that would be affected by the
passage of S. 1324.
ANPA believes it vital that any information on alleged abuses by
the CIA continue to be subject to the search and review provisions of
the current act. CIA officials last week gave oral assurances that rec-
ords of any internal investigations of nonfrivolous allegations would
remain in nondesignated files.
As John McMahon, Deputy Director of the CIA, stated last week :
Information relevant to the subject matter of the investigation would be sub-
ject to research and review in response to an FOIA request, because this infor-
mation would be contained in files belonging to the Inspector General's office, for
example, and these files cannot be designated under the terms of this bill.
While these oral statements are reassuring, it is critical that legisla-
tive history on this point be crystal clear. li'urther, there should also
be clarification of what is and is not frivolous.
In conclusion, Mr. Chairman, we would like to assure you that no
representative of the newspaper business wants to in any way endanger
the national security of our Nation or endanger the lives of those peo-
ple involved in maintaining that security. We are here today because
of the serious public policy questions inherent in S. 1324.
We are at something of a disadvantage, because it is a public policy
discussion that must take place without the complete airing of inform-
ation on both sides. We must trust the veracity of the statements by
CIA officials that passage of S. 1324 would not result in additional
information being withheld by the Agency, but would free up the
Agency from the search and review of information that is currently
exempted from release.
We also must and will rely on the wisdom and diligence of the con-
gressional oversight process, as do all citizens. We must also raise our
heartfelt concern that this committee take into account the vital role
that public access has played in the growth and maturation of this
country. We believe further refinement of S. 1324 is necessary to insure
that the immense power that would be invested in the Director of the
CIA with the passage of this bill does not upset the delicate balance of
the government's need for secrecy, the public's right to know, and an
individual's right to privacy.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you very, very much.
[Prepared statement of Charles S. Rowe follows:]
PREPARED STATEMENT OF CHARLES S. ROWE, AMERICAN NEWSPAPER PUBLISHERS
ASSOCIATION
The American Newspaper Publishers Association is deeply concerned about the
potential impact of S. 1324, the "Intelligence Information Act of 1983."
My name is Charles Rowe and I am editor and co-publisher of The Free Lance-
Star in Fredericksburg, Virginia. I am testifying today on behalf of ANPA, a
non-profit trade association with nearly 1,400 member newspapers representing
some 90 percent of the daily and Sunday circulation in the U.S. Many non-daily
newspapers also are members.
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Mr. Chairman, the bill being considered here today is the result of several years
of discussion and debate about the need to provide some relief from the Freedom
of Information Act for the Central Intelligence Agency. Throughout this debate,
representatives of the newspaper business have not stubbornly rejected nor ig-
nored the CIA's pleas for some relief. While we have stated repeatedly that the
CIA never has been forced to turn over to the public any classified information
(a fact that still holds true today), we have also listened carefully to the agency's
claims that this court record belies the vast number of hours and amount of
money that went into processing the denied requests that subsequently were up-
held by the courts.
In fact, representatives of the newspaper business met in 1982 with CIA Direc-
tor William Casey and other top CIA officials to attempt to learn more about
the unique problems confronting the CIA in its efforts to comply with the FOIA.
Mr. Chairman, this educational process has been a good faith effort to under-
stand. And, while we believe the language of S. 1324 is an improvement over
previous bills, (such as S. 1273, the "Intelligence Reform Act of. 1981," introduced
by Senator Chafee in the 97th Congress) we still have serious concerns about the
practical effects the passage of S. 1324 might have on the public's access to in-
formation about the CIA.
S. 1324 would allow the Director of the CIA to withhold specific operational
files from the search and review requirements of the FOIA. This power would
extend only to those operational files located within the offices of the Directorate
of Operations, the Directorate for Science and Technology and the Office of Secu-
rity of the CIA.
You must realize, Mr. Chairman, that we are relying wholly on the expertise
and judgment of this committee and representatives of the CIA, regarding the
extensiveness of the power being given to the CIA Director by S. 1324. We do
not know (nor should we) the percentage of CIA files affected by this bill; we
have no knowledge of the ease with which information could be placed in an
operational file thereby exempting it from search and review ; nor do we have
knowledge of the ease with which files could be designated "operational" and
be sealed off forever from any public access.
In carefully studying the language of S. 1324, it would appear that this power
is broad. For example, any operational files in the three specific offices, dealing
with "foreign intelligence, counterintelligence, or counterterrorism operations"
would disappear from existence so far as the public or the courts are concerned.
The only oversight of the Director's actions would be by this committee and the
House Intelligence Committee. While Congressional oversight can be effective,
it is only as effective as the amount of information that Congress receives from
the CIA.
JUDICIAL REVIEW
Of primary concern is the elimination of judicial review of the Director's deci-
sion to designate a file as operational. CIA Deputy General Counsel Ernest Mayer-
feld told this committee last week that S. 1324 leaves "full discretion to the Direc-
tor. Any other interpretation would turn this legislation on its head." i
As Senator Huddleston pointed out last week at the same hearing, a "major
principle of the FOIA is that the courts have the right of review."
ANPA agrees that this is a major and vital principle of the Act. De novo review
of CIA decision under FOIA was made part of the law with the 1974 amend-
ments. This judicial authority put teeth into the law and helped make it an
effective tool for the public to try to seek information about CIA functions. As
then Deputy Director Admiral Bobby Inman told this committee in 1981 I "the
Central Intelligence Agency had received virtually no FOIA requests," prior to
the 1974 amendments. The amendments establishing de novo review and requir-
ing release of reasonably segregable portions of a document "led to an explosion
in FOIA requests" at the CIA, according to Inman. To strip the law of this prin-
ciple of de novo review, and of any judicial review whatsoever, is to return us to
pre-FOIA days. It would also return us to the days where the ineffectiveness of
the Act rendered it basically useless to the public-a uselessness reflected by the
absence of requests noted by Admiral Inman. ANPA cannot support this step
backward. ^^' _^ ^-- AA
ANPA believes it vital that the application of S. 1324 be restricted to the (CIA.
It would appear that the language of the bill, based on the specificity of the offices
and files mentioned, covers only the CIA. Additionally, it has been emphasized by
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CIA officials that the language can only apply to the CIA because of the unique,
compartmentalized structure of its files. Our concern is based on repeated testi-
mony in the past by representatives of the Defense Intelligence Agency, the
National Security Agency and other non-intelligence agencies, urging relief from
FOIA. An identical "neither confirm nor deny" approach of S. 1324 has been
sought in the past by these other agencies. There must be an affirmative statement
in the bill or in the legislative history about the exclusive application to the CIA
of S. 1324.
BACKLOG OF BEQUESTS
A primary problem journalists have had in requesting information from the CIA
are the excessive delays in processing. Proponents of S. 1324 claim one of the bene-
fits of passage would be a reduction in the existing backlog of requests. When
questioned last week on the specific steps that would be taken by the CIA to clear
up this backlog, the response was troublingly vague. We would be very interested
in the specific, definitive steps the CIA will take, if S. 1324 is passed, in answering
those requests for'information not contained in operational files.
For example, the CIA administratively could determine to confer with request-
ers by telephone to clarify the request that has been made, thereby eliminating any
confusion and speeding the processing time.
The other serious backlog is with CIA lawsuits pending in court. Mr. Mayerfeld
testified last week that of the 77 suits before the court, 46 would be affected by
S. 1324. Of these, 22 should be dismissed entirely because they deal only with docu-
ments from operational files; and, the remaining 24 would largely be dismissed
because the majority of documents under question are from designated files.
Specific details about the nature of the information involved in these lawsuits
could be beneficial to members of this committee in understanding the type of
information that would be affected by the passage of S. 1324.
ANPA believes it vital that any information on alleged abuses by the CIA con-
tinue to be subject to the search and review provisions of the current Act. CIA
officials last week gave oral assurances that records of any internal investiga-
tions of non-frivolous allegations would remain in non-designated files.
As John McMahon, deputy director of the CIA stated last week, "Information
relevant to the subject matter of the investigation would be subject to search and
review in response to an FOIA request because this information would be con-
tained in files belonging to the Inspector General's office, for example, and these
files cannot be designated under the terms of this bill."
While these oral statements are reassuring, it is critical that legislative history
on this point be crystal clear. Further, there should also be clarification of what is
and is not "frivolous."
In conclusion, Mr. Chairman, we would like to assure you that no representa-
tive of the newspaper business wants to in any way endanger the national
security of our nation or endanger the lives of those people involved in maintain-
ing that security. We are here today because of the serious public policy ques-
tions inherent in S. 1324. We are at something of a disadvantage because it is
a public policy discussion that must take place without the complete airing of
information on both sides. We must trust the veracity of the statements by CIA
officials that passage of S. 1324 would not result in additional information being
withheld by the CIA, but would free-up the agency from the search and review
of information that is currently exempted from release. We also must and will
rely on the wisdom and diligence of the Congressional oversight process-as do
all citizens.
We must also raise our heartfelt concern that this committee take into account
the vital role that public access has played in the growth and maturation of
this country. We believe further refinement of S. 1324 is necessary to ensure that
the immense power that would be invested in the director of the CIA with the
passage of this bill does not upset the delicate balance of the government's need
for secrecy, the public's right to know and an individual's right to privacy.
The CHAIRMAN. Now we will hear from Mr. Charles Rowe, editor
and copublisher of the Free-Lance Star, speaking for the American
Newspaper Publishers Association.
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STATEMENT OF STEVEN DORNFELD, NATIONAL PRESIDENT, SO-
CIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI,
ACCOMPANIED BY BRUCE W. SANFORD, COUNSEL, BAKER &
HOSTETLER
Mr. DORNFELD. Thank you, Mr. Chairman, you just heard from
him. My name is Steven 1Lornfeld. I am national president of the so-
ciety of professional journalists, Sigma Delta Chi.
We appreciate the opportunity to appear before your committee
this morning and comment on S. 1324. Accompanying me at my right
today is Bruce W. Sanford of Baker & Hostetler, the society's first
amendment counsel.
Founded in 1909, our society is the largest organization of journal-
ists in the United States, with more than 2,800 members in all branches
of the news media and broadcast.
I will attempt to abbreviate my comments this morning, Mr. Chair-
man, but would appreciate it if my entire statement could be incor-
porated in the record.
The CHAIRMAN. That will be done.
Mr. DORNFELD. Thank you.
We appear before the committee today, Mr. Chairman, as we have
in the past, because of our commitment to the values embodied in the
first amendment and the Freedom of Information Act. We share the
belief of their architects that all citizens should have access to the
information necessary to monitor the activities of their Government
and hold it accountable.
At the outset, we recognize that the Central Intelligence Agency
has at last abandoned its request of prior years to be totally exeiipt
from the Freedom of Information Act. As Senator Moynihan noted
last year, the fact that our secret intelligence service is subject to soiiie-
thing called the Freedom of Information Act may sound paradoxical,
but actually expresses a great truth, that in a democracy we can have
an int. digence service that is both effective and accountable.
Last week's public testimony by the CIA suggest that the Agency
seeks this legislation in order to alleviate its administrative workload
and enhance its internal security. To the extent that this bill merely
alleviates the CIA's administrative burden, our society has no com-
plaints with it. However, if the Agency intends to use this measure to
reduce the amount of information being made available to the public,
we oppose it. The case for a broader exemption from the act simply
has not been made.
Mr. Chairman, as we approach this bill, our society is sympathetic
with the purposes of the measure as stated in section 2(b). However,
we still have reservations about its effects. In fact, we have so many
unanswered questions that we must indulge this morning in the legis-
lative equivalent of the game "Twenty Questions." All our questions
come in the context of the Reagan administration's overall information
policy, a policy which has consistently been to whittle away at the
amount of information the American people receive about their
Government.
We fear that this bill could be just another deep pothole on the same
one-way street that has already given us the President's March i 11
secrecy directive, his retrogressive Executive order on classification of
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documents, a package of amendments that would dismantle the Free-
dom of Information Act, and a Justice Department policy intended
to discourage FOIA fee waivers.
We also believe, Mr. Chairman, that the Senate seems to be stuck
in a rut concerning FOIA. Over the last 3 years, there has been a
steady stream of proposals to amend FOIA, but the ones that have
been given the green light by the Senate and its committees all travel
in the same direction, creating the possibility of a huge roadblock that
could restrict the flow of vital information going to the American
public.
Yet bills to open up the Government, such as Senator Durenberger's
effort to reverse the effect of the President's ill-advised?Executive order
on classification, have met nothing but a legislative gridlock.
One effect of this proposed bill before us today is plain. It will
increase the oversight chores of this committee and its counterpart
in the House. Thus, if these committees do not detect future agency
overreaching in defining exempt files, they will have to accept the
blame for any CIA abuses revealed 8 or 10 years down the road.
Even today, your oversight role requires the committee to obtain a
host of answers to questions about S. 1324. For example, would this
bill deny information to the public that is now available under FOIA?
If the answer is yes, the bill does more than the CIA says it does.
What information does the agency believe this bill entitles them to
withhold? Has this committee considered a list of stories based on in-
formation obtained under the FOIA, and has the committee asked if
this information would still be releasable under 5.1324?
Has this committee analyzed the fate of the lawsuits now pending
against the agency under the retroactive feature of this bill? How
would information sought in those suits be affected by the bill? Will
requests to the CIA from the press receive the expedited treatment
promised under the FOIA? Will the CIA shift its personnel to meet
its pledge to reduce the reply time to FOIA requests if S. 1324 is
enacted?
Does the agency have a specific plan to reduce this backlog that
belies the distressingly noncommital answer given last Tuesday? While
the agency claims that this bill will significantly reduce its backlog,
why is there no oversight provision to insure that this is done? Are
there sufficient checks for the public in this bill if the Director of
Central Intelligence has total and final authority to decide what is and
what is not an operational file?
Under the bill's extraordinarily broad definition of operational file,
what is to prevent more and more information from being hidden, in-
cluding information now releasable under FOIA? Why is there no
mention of congressional oversight and how it will work under 5.1324?
How can the spirit of FOIA, that the American people are entitled to
information about their Government, be fulfilled if this bill does not
contain any provision for judicial review of a decision made by the
DCI?
Agency officials said in their testimony that judicial review would
in their view stand the bill on its head, but does not the lack of review
increase the likelihood. of abuses by the agency? How will a file receive
the designation operational? What criteria will be used? Is there any
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88
review procedure so that information in operational files can be 'de-
classified as circumstances permit?
Why does this bill contain no provision allowing public scrutiny of
files regarding known abuses by the CIA? Why do the files of a covert
operation that is acknowledged, making it an overt operation, remain
"operational" under S. 1324?
Under the agency's explanation last week, even acknowledgment of
a covert operation such as in Nicaragua by the President might not
make the files releasable under FOIA. Should not the CIA informa-
tion on an issue placed in the public domain by a public official be re-
leasable ?
We reporters have a lot of questions, and I only have a few morel.
Has the committee received any concrete examples from the agency
that FOIA has ever led to the exposure of a source's identity? Has the
agency shown that it has lost agents because of its fears about FOIA ?
Is it possible that these sorts of public statements create self-fulfilling
prophesies? In other words, once the agency says FOIA makes possi-
ble disclosures of sources and methods, do not agents start thinking
that way?
And finally, can a time limit be placed on S. 1324 so that the agency
must review files after they are closed a certain number of years down
the road and declassify information that can be safely released?
In the final analysis, Mr. Chairman, we well recognize the invalua-
ble service that the CIA performs for the citizens of this country and
its need to keep some information secret. But we also believe that the
200-year-old road that this democracy has successfully followed) is
paved with inviolate ideals, and paramount among them is that our
institutions of Government are answerable to the American people.
That ideal crumbles when secrecy for secrecy's sake erodes the re-
sponsiveness and accountability of the CIA or any other part of our
Government. We look to this committee to assure that that does riot
happen.
I thank you.
[The prepared statement of Mr. Dornfeld follows:]
PREPARED STATEMENT OF STEVEN DORNFELD, SOCIETY OF PROFESSIONAL I
JOURNALISTS, SIGMA DELTA CHI
Thank you Mr. Chairman and members of the Committee for providing us
this opportunity to comment on S. 1324, the Intelligence Information Act of 1983.
My name Is Steven Dornfeld and I ani here today as National President; of
the Society of Professional Journalists, Sigma Delta Chi. Accompanying me is
Bruce W. Sanford of Baker & Hostetler, the Society's First Amendment counsel.
I have been a working reporter for the past 14 years and a national officer, of
the Society since 1973. Formed in 1909, the Society is the largest organization
of journalists in the United States, with more than 28,000 members in all
branches of the news media, print and broadcast.
We appear before this Committee today, Mr. Chairman, as we have in the
past, because of our interest in the Government's information policies. That
interest stems only secondarily from professional self-interest. As the Chair-
man knows, journalists in this city do not need official governmental sources
of information when there are always plenty of people ready and willing to
leak unofficial information. (Why, sometimes, those folks even dispense classi-
fied information In pursuit of political advantage.) Thus, the Society of Profes-
sional Journalists comes here today not so much on its members' behalf, as
on the public's behalf. It is, after all, the public that truly benefits from access
to the sheer authenticity of official Government records as opposed to people's
interpretations of those records. I
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At the outset, we recognize that the Central Intelligence Agency ("CIA") has
at last abandoned its request of prior years to be totally exempt from the Freedom
of Information Act ("FOIA"). As Senator Moynihan noted last year, the fact that
our secret intelligence service is subject to something called the FOIA may sound
paradoxical, but actually it expresses a great truth-and that makes our nation
and our intelligence service different and stronger than any other on earth.
Last week's public testimony by the CIA suggests that the Agency seeks this
legislation in order to alleviate its administrative work and enhance its internal
security. To the extent that this proposed bill merely alleviates administrative
burden without decreasing the kind of information presently available under the
FOIA, the Society does not oppose the bill. To the extent. that the CIA harbors
deeper aspirations for this -bill we oppose it since the case for a broader exemption
from the Act has simply not been made.
Mr. Chairman, our position here today should explode the myth that the press
always opposes the CIA's legislative requests. Obviously, while trying to approach
this bill reasonably, the Society still has reservations about its effects. In fact, we
have so many unanswered questions that we must indulge this morning in a legis-
lative equivalent of the game "Twenty Questions." And all our questions come in
the context of the Reagan Administration's overall information policy, a policy
which has been constantly whittling away the amount of information the Ameri-
can people receive about their government. Any cynicism journalists have about
the true intent of S. 1324 derives from a fear that this bill is just another deep
pothole on the same one-way street that has already given us the President's
March 11 directive on national security information, last year's executive order on
classification, the Justice Department's policy on fee waivers and a retrogressive
package of Freedom of Information Act amendments.
We also believe, Mr. Chairman, that the Senate is stuck in a rut concerning the
FOIA. There has been a steady flow of'FOIA amendments over the last three
years. But all the ones given the green light by the Senate travel in the same
direction, potentially causing a huge roadblock tying up the traffic in information
about the government going to the American public. The Senate has put in motion
bills by the CIA, the FBI, and the Department of Justice to expand their exemp-
tions. Yet bills to open up the government, like Senator Durenberger's effort to
reverse President Reagan's order on classification, have met nothing but legisla-
tive gridlock.
One effect of this proposed bill is plain : it will increase the oversight chores of
this Select Committee. Thus, if the Committee does not detect future agency over-
reaching in defining exempt files, the blame for not preventing agency abuses will
be laid directly at its door. Even today, the oversight role requires the Committee
obtaining answers to a bushel basket of questions about S. 1324.
Would this bill deny information to the public that is now available under the
FOIA? If the answer is "yes,"the bill is more than the CIA says it is. What infor-
mation does the Agency believe this bill entitles them to withhold? Has this Com-
mittee presented the Agency with a list of stories based on information obtained
under the FOIA and asked if the information would still be released under
S. 1324? Has this Committee analyzed the fate of the law suits pending against
the Agency under the retroactive feature of this bill? How would the Information
sought in those suits be affected?
Will requests to the CIA from the press receive the expedited treatment prom-
ised under the FOIA?
How will the CIA shift its personnel to meet its pledge to reduce its reply time
to FOIA requests if S. 1324 is enacted? Does the Agency have a specific plan to
reduce this backlog that belies the distressingly noncommittal answer given last
Tuesday? While the Agency claims this bill will significantly reduce its work-
load, why is there no oversight provision to ensure this is done? Has the Com-
mittee considered a sanction if the CIA fails to reduce its response time?
Are there sufficient checks for the public in this bill if the Director of the
Central Intelligence Agency ("DCI") has total and final authority to decide
what is and is not an "operational file"? Under the bill's extraordinary broad
definition of "operational file," what is to prevent more and more information
from being hidden, including information now releasable under the FOIA? Why
is there no mention of Congressional oversight and how it will work in S. 1324?
How can the "spirit" of the FOIA-that the American people are entitled to
information about their government-be fulfilled if this bill does not contain any
provision for judicial review of a decision by the DCI? Agency officials said in
their testimony that judicial review would, in their view, "stand the bill on its
head." But doesn't lack of review increase the likelihood of abuses by the Agency?
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How will a file receive the designation "operational"? What criteria will he
used? Is there any review procedure so that information in operational files can
be reclassified as circumstances permit? None of this has been explored publicly.
Why does this bill contain no provision allowing public scrutiny of files regard-
ing known abuses by the CIA? The only response Mr. McMahon gave last Tuesday
was a well-crafted statement that the report of an investigation by the CIA's
Inspector General would be placed in non-classified files. Such a report can be a
poor excuse for an independent investigation of abuse. And why is there no pro-
vision for Congressional oversight in such an instance?
Why do the files of a covert operation that is acknowledged, making it an overt
operation, remain "operational" under S. 1324? Under the Agency's explanation of
last Tuesday, even acknowledgement of a covert operation, like Nicaragua,) by a
President might not make the files releasable under the FOIA. Shouldn't some
CIA information on an issue placed in the public domain by a public official be
releasable?
Has this Committee received concrete examples from the Agency that the FOIA
has ever led to the exposure of a source's identity? Has the Agency shown that it
has lost agents because of fears about the FOIA? Is it possible that these 'sorts
of public statements create self-fulfilling prophecies? In other words, once the
Agency says the FOIA makes possible the disclosure of sources and methods, don't
agents start thinking that way?
Can a time limit be placed in S. 1324 so that the Agency must review files after
they are closed a certain number of years and reclassify information which can
be safely released?
In the final analysis, Mr. Chairman, we well realize the invaluable service the
CIA performs for the citizens of the United States, and its need to keep some in-
formation secret. And we also believe that the 200-year-old road this democracy
has so. successfully followed is paved with inviolate ideals, and paramount among
them is that all institutions of government are answerable to the Americanl peo-
ple. That ideal- crumbles when the need for secrecy for secrecy's sake erodes the
responsiveness and accountability of the CIA or any other part of government.
We.look to this Committee to insure that does not happen. I
The CHAIRMAN. Thank you very much,'Mr. Dornfeld. We will now
have some questions. Senator Inouye? I
Senator INOUYE. I believe you have just testified that the architects
of this Republic tried to make certain that all necessary information
be made available to the public. And, as we all know, the major institu-
tion responsible for making information available to the public would
be the people in your profession.
Just a question of what is necessary. During the early weeks of
World War II, a major newspaper in Chicago got hold of informa-
tion that suggested that we had broken the Japanese code. Do you
think that matter should have been on the front page? Was that neces-
sary information?
Mr. DORNFELD. Senator, if I had been in that position, I suspect I
probably would have decided not to publish. On the other hand, there
have been occasions in which editors have obtained information and
decided for security reasons, trying to act in the best interests of the
American people, not to publish that information, and those decisions
One thinks of the New York. Times decision not to
ublish the B
p
ay
of Pigs invasion plans. How much anguish would that have saved if
the Times had gone ahead and published? I think our democracy is founded on a belief that the press islone
of the checks and balances that operates in our system. And that those
decisions about what information the public ought to have does not
rest. just in a government agency, but rather, there are a multiplicity
of sources, and journalists are making those decisions as well as gov-
ernment officials.
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Senator INOUYE. What are your thoughts on the suggestion made by
the ACLU on judicial review? It was suggested that the designation
authority be deleted, and that Congress set the standards for what is
operational, and provide for judicial review. Would that be satisfac-
tory to you, sir?
Mr. DORNFELD. Senator, I am not sure I am in a position to commit
ourselves to supporting this suggestion until we see some language. I
think our concerns would be greatly alleviated if there were standards
in the bill written by Congress, if Congress decided which information
should be designated as operational, and if there were provisions for
judicial review. I think we would be much more comfortable with that.
Mr. Rowe might wish to coment on that.
Mr. RowE. I believe the proposal set forth today by Mr. Lynch has
some possibilities. I myself am not a lawyer, and would not like to give
a definitive judgment, but I believe that Mr. Lynch and his associates
in working with committee staff and perhaps CIA legal officials could
come up with some language that would make that aspect of the bill
much more acceptable.
Senator INOUYE. Do you believe that this measure will restrict your
activities in investigating intelligence abuses?
Mr. ROWE. I have got concerns about that, Senator. Unfortunately,
trying to define some of the language in this bill and wend your way
through it sometimes leads me to believe I am in sort of a maze trying
to figure when I am going to get to a conclusion or not get to a conclu-
sion. If in the legislative history, even if the language of the bill is not
changed, but in the history, we can provide some type of assurance
that abuses of the intelligence process would be subject to search and
review, I would feel much better about it.
Senator INOUYE. Do you believe the President should have the sole
authority to decide whether an operation is covert or not?
Mr. ROWE. I am a great believer in the check and balance system. I
would think that if it is possible for a court-for there to be judicial
review of the arbitrariness of such a designation, I would be much
happier, I think.
Senator INOUYE. Can you think of any case in the past where news-
worthy information was obtained from the CIA operational files
which would be denied under this bill?
Mr. DORNFELD. I think we are somewhat handicapped, Senator, in
that we do not know exactly what constitutes CIA operational files or
nonoperational files. These distinctions are not spelled out in the legis-
lation, and I am not sure if they are spelled out in any other place. It
seems this whole bill rests on terms of art that are employed over at
Langley, and I am not sure they are not subject to change on a daily
basis depending upon what best fits the CIA's purposes.
Senator INOUYE. Do you have any suggested legislative language
that can be studied by this committee that would in effect cure some of
your concerns?
Mr. DORNFELD. I do not know that we have any language, Senator,
but I think that the road you started traveling down with Mr. Lynch
might prove fruitful in trying to write some standards and some defi-
nitions into the legislation. I am not sure what operational files
means. I am not sure what foreign intelligence and counterintelli-
gence and counterterrorism are. To me, they sound like words that
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might apply to almost any enterprise in which the CIA might clioose
to engage. 1
Senator INOUYE. Then, am I correct to assume from your responses
that you feel that this measure is a step backward.?
. Mr. DORNFELD. We are comforted that it is a major step forward on
the part of the CIA. It is also a major step from Director Casey's
speech in August of last year before the American Legion, where he
suggested that he could not see how the CIA could live with anything
less than a total exemption from the FOIA. So, we are comforted that
the CIA has moved a fair amount in just the span of 6 or 7 months.
But we still have major concerns with this piece of legislation. I
Mr. ROWE. Might I add, Senator, that my organization does not
feel that this is a step backward. We do think that this committee,
through its careful attention to the language of the bill, can make some
further improvements, but I believe that we will be better off with
some of the changes that this bill would make.
Senator INOUYE. My final question. From your experience under the
FOIA, would you give the CIA good grades for cooperating?
Mr. ROWE. 1 myself do not speak from personal experience. People
that I have talked with generally speak of a reluctance that they en-
counter at CIA as opposed to, let's say, at the Pentagon, where
they find cooperation much more freely given. Steve, would you have
a comment?
Mr. DoRNFELD. I have the same impression. We are well aware of the
backlog at the CIA, and it is frequently cited as a reason why requests
are not responded to very quickly. If they are being responded to even
in 2 years, as some of the earlier testimony suggested, I guess I would
be surprised. I know that a reporter in my own bureau needed 3
years to get a response to a request that he had for information that
was largely historical in nature.
Senator INOUYE. Thank you very much.
Thank you, Mr. Chairman.
The CHAIRMAN. Senator Leahy.
Senator LEAfiy. Thank you, Mr. Chairman.
I just have a couple of questions of followup on what Senator
Inouye was saying earlier. The ACLU has talked about some changes
for judicial review we ought to make which may satisfy them, and so
on. Could you provide for the record the views of your organization re-
garding the ACLU proposals? Mr. Lynch laid out several of them here.
If you would like specifics on how I see those proposals, I would be
glad also to provide that for you. I realize that some of these proposals
you heard this morning in testimony and some ideas came as a result
of questions asked by either myself or others. We would not expect you
to be able to take a position, or provide your organization's position
today but I think it would be very helpful to us on the committee to
have it.
To the extent that you are able to take a position, we would welcome
having that.
Mr. DORNFELD. Surely.
Mr. ROWE. We would be happy to provide it.
Senator LEAHY. I realize this is an awfully general question,! but
what does the public have to gain by release of this kind of informa-
tion under FOIA? Does the public gain, or do only groups hostile to
i
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the U.S. gain? We hear you talk about the speech Mr. Casey gave to
the American Legion last year. The impression almost was that the
KGB might gain by FOIA as applied to the CIA, but the American
people, in fact, the American people lose. Is that really your view of
r'OIA and the CIA?
Mr. ROWE. I realize that CIA and intelligence agencies have a dif-
ferent problem with the act than many administrative agencies, but
through all my years in this business, I have come to believe more
and more firmly in the ability of the American people to govern
themselves given the proper information and knowledge. The
more information they need to govern themselves is restricted, the
greater the chances that this democracy is going to not work as well
as it should, and for that reason I believe in any area that the maximum
information that can be given to the people will facilitate the opera-
tions of a democracy which are going to be imperfect at best. But they
can be improved on if people have the fullest possible information.
Mr. DORNFELD. I think FOIA has been helpful in providing some of
the information that the American people have been given in the last
10 or 12 years concerning CIA abuses. And it has been partially true
that through those revelations, we have been able to demand a little
higher standard from the CIA, and more accountability from the CIA.
1 think it is a very important tool, and that act, and your committee,
and its counterpart in the House, are about the only tools that we have
available to insure that the agency is accountable.
Senator LEAHY. You know, Vermont is probably as conservative a
State as any in the Nation, certainly as cautious a State as any. One of
it's advantages, though, is it is a small State, and I am able to get home
there virtually every weekend. I was up there this week, and will be
back up again on Friday, if, God willing, we get out of this place. I
love Washington, of course, but contemplating the idea of spending
the first week or so of July in Washington or in Vermont, I find my
constitutents beckon.
I might say that they harken to-or echo-what you are saying here.
They have a great faith in our Government and our leaders in both
parties, but they also would like to have an idea that they know what
is going on, too. They have faith in us just so far, but they want to be
able to make
The CHAIRMAN. Would the Senator yield for just a second?
Senator LEAHY. Certainly.
The CHAIRMAN. I am terribly sorry, but I have to go to a funeral.
117Would you take over my job?
Senator LEAHY. You rascal. I was just going to leave, too.
The CHAIRMAN. I hate to leave.
Senator LEAHY. Could I go to the funeral with you, Mr. Chairman?
The CHAIRMAN. No; I think God would be happier if you stayed
here. [General laughter.]
Senator LEAHY. And if God would not be happier, the chairman
would. The chairman outranks God in this committee, let me tell you.
Basically what I am saying is that I think there is a feeling around
the country that our Government is our Government, whether it makes
mistakes or not. It is the one Government that our people really want
and should want. Even with all of its mistakes, it is better than any-
thing else. But we also want to know when those mistakes are made,
and I think we should. I think the thing that keeps us from making
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the same mistakes over and over- again is that the public does know
about it.
I would like you to provide, if you could, for the record some specific
examples of important information that has been released which you
feel relates to America's understanding of the intelligence function.
Mr. DORNFELD. Fine. We would be more than happy to.
Senator LEARY [presiding). Until they actually stop and think
about it, I doubt people realize that some of the most significant legis-
lation and some of the most significant and reforms in this Government
under both Republican and Democratic administrations has come about
as a result of information first published in the press, not first stated
in the halls of Congress or on the floor of the House of Representatives
or the U.S. Senate, but the front pages of some of our newspapers.
That has galvanized opinion-as it should in a democracy-that
democracy has acted and invariably we come out as a better Govern-
ment as a result of that. I do not mean to get on a soap box here this
morning, but I think sometimes here in Washington we forget that
those of us who are here are simply other members of the whole coun-
try.
I mean, the Government is here to represent all of us. We happen to
be just the ones who are fortunate enough to represent our own people
from back home at a given time whether it is a short or long period,
whatever it might be.
But it is the people themselves who make these changes when, they
express their opinions through us. I think that we have to remind our-
selves oftentimes that public opinion is formed in the first instance
not by elected leaders but by a free press, and that is the way it should
be.
Mr. Chairman, Senator Goldwater informed me that God wanted
either you or me to stay here. I have to leave so I am going to finally
turn it over to you.
Senator DURENBERGER [presiding]. All right. Thank you very much,
Pat. I
I had five penetrating questions for Mr. Dornfeld who usually, cov-
ers me here for the St. Paul papers. Three of them have alreadyibeen
answered. The other two I will submit in writing and probably sub-
mit to both Mr. Rowe and Mr. Dornfeld because it would help my
understanding of the problem. I
I thank you for your testimony and call upon the next panel which
is two persons : John Norton Moore, Director of the Center for Law
and National Security, University of Virginia Law School, and chair-
man of the ABA Standing Committee on Law and National Security;
and John Shenefield, member of the ABA Standing Committee on
Law and National Security.
Mr. Moore, welcome. You may proceed.
STATEMENT OF JOHN NORTON MOORE, CHAIRMAN, ABA STANDING
COMMITTEE ON LAW AND_ NATIONAL SECURITY
Mr. MOORE. Thank you, Mr. Chairman. With your permission I
would like to place my prepared remarks in the record and to sum-
marize orally two points only.
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Senator DuRENBERGER. The prepared remarks of all the witnesses
without objection will be made part of the record. You may proceed
to summarize your comments.
Mr. MOORE. Mr. Chairman, the first point is that it is a particular
pleasure to be able to testify in favor of prompt passage of such a
well drated bill that in my judgment should be noncontroversial.
As the Chairman of the committee has indicated, the principal
mechanism of this bill is one to provide relief to the Central Intelli-
gence Agency-and by its terms the Central Intelligence Agency
alone-from the burdens of searching and reviewing operational files
as opposed to product files. Since that is an area that is particularly
sensitive with respect to the protection of sources and methods, it is
an area that does provide some relief to the Central Intelligence
Agency from an accute potential for misperception of the possibility
of public release of information concerning sources or methods.
In addition, Mr. Chairman, this bill has the happy feature that
since it would be a set of files that are not going to be made public
since they are the most sensitive and are going to remain classified
and be exempt under the real world disclosure features of the Free-
dom of Information Act, that we are not by this bill curtailing any
information that would otherwise be made available to the public
under the Freedom of Information Act.
In addition, Mr. Chairman, we would in fact be providing the
Agency with an opportunity to relieve some of the backlog and to
in fact respond somewhat more promptly to FOIA requests. As a
result, I would. certainly support this bill which it seems to me meets
one of the acute problems-at least in part-of the Central Intelli-
gence Agency yet at the same time has virtually no cost on the other
side of the balancing equation and indeed ought to enable more rapid
release of FOIA requests.
Mr. Chairman, I would like to turn now to the second remark which
is a very general one. It is simply to advert to some of the ways in
which we normally perceive the balancing situation in applicability
of FOIA to the intelligence community and to suggest a broader
framework. In the conventional wisdom we talk as though the bal-
ance is a series of costs to our intelligence capabilities on the one
hand versus a series of benefits to a democratic society and an informed
citizenry on the other.
Mr. Chairman, it seems to me that those parts of the equation are
present and have been adequately explored but that the equation is
more complex than that and that we should remind ourselves that in
fact there are a variety of important benefits to a democratic society
of a strong intelligence capability and on the other side of the equation
that there may be at least some cost to an informed citizenry by a
procedure which encourages partial release of bits and pieces of in-
formation about the intelligence community in settings in which the
community is necessarily prevented from discussing full content
First let us look briefly at the benefits to a democratic society side
of the equation. I do not have to remind this committee that strong
.intelligence is absolutely essential for the verification of arms control
agreements. Indeed, as Congress itself in the Arms Control Act of 1977
has pointed out, verification is essential for any meaningful agree-
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ments and certainly a strong intelligence capability is essential for
background information necessary for verification.
The ability of the United States to act internationally in they pro-
tection of human rights is benefited strongly by an intelligence capa-
bility that enables us to know adequately where we may usefully) take
action to protect such human rights.
An intelligence capability is essential in aiding democratic societies
in protecting themselves against systematic campaigns of disinforma-
tion waged abroad against them by a variety of totalitarian govern-
ments. And it may be essential in protecting us against the random or
organized terror, either in terrorist settings or-in actions organized by
nations in violations of the U.N. Charter-such actions as the attack
on the pope, for example, that we have seen in. the last few years and
the invasion of Afghanistan.
Now on the other side of the equation, though it is clear that some
releases of public information are going to be useful for an informed
citizenry-and I must say I certainly endorse effective scholarship in
this area and as a scholar would like to strongly support that, at the
same time Mr. Chairman, inherently in dealing with intelligence infor-
mation the only fully informed oversight is the President and the
checks provided by law and the Congress of the United States acting
through this committee ? and the House Select Committee and there is
some risk of misinformation in an effort at partial release in a context
that must inherently remain secret.
We deal in the area of intelligence information in an area in which
inherently we are not going to be releasing the central core of informa-
tion concerning operations and ways of obtaining information. These
areas are, and are going to be, under any version of FOIA, exempt
from disclosure.
As a result, in discussing intelligence matters more often than not
there will be a major portion of the context that will not be in the
public domain. That is we deal inherently in most intelligence settings
in a setting in which the intelligence community, unlike the Depart-
ment of Agriculture, when an allegation is made concerning agricul-
tural policy, is not able to respond in dealing effectively by reporting to
allegations publicly on the record in their full context.
We are dealing in a context in which frequently the intelligence
community is responding to activities of other nations or groups that
are themselves maintained covertly or that are accompanied with dis-
information campaigns or that are generally denied. In those settings
it becomes extremely difficult to in fact have' a full and informed!pub-
lie debate.
Now this is not to suggest that somehow in a democratic society we
will not have debate on intelligence issues. We are certainly going to
have that. It is simply to remind us that in addition to any benefits on
the public release side from applying FOIA to the intelligence com-
munity there may indeed be some realistic cost from the potential for
misinformation on the public release side with respect to bits and
pieces taken out of context concerning intelligence activities.
Thank you, Mr. Chairman.
[The prepared statement of John Norton Moore follows:] I
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PREPARED STATEMENT OF JOHN NORTON MOOSE 1
Mr. Chairman, it is an honor and a pleasure to appear before this Committee in
support of S. 1324, a bill to amend the National Security Act of 1947 to regulate
public disclosure of information held by the Central Intelligence Agency. This
bill is an important step in strengthening our Nation's intelligence capabilities.
One of the great strengths of our Nation is its tradition of openness in govern-
ment and accountability to its citizens. It has long been evident, however, that
the Freedom of Information Act, an act of government-wide general applicability
intended to foster this tradition, does not achieve an appropriate balance when
applied to the intelligence community.
A strong intelligence capability is essential for the protection of democratic
value and human freedoms in a world sadly marred by continuing war, terrorism,
disinformation and totalitarian threats to human liberty. More specifically a
strong national intelligence capability is essential, among other reasons, for :
Maintenance of strategic stability and vertification of arms control agree-
ments ;
Defense against threats Ie of force in violation. of the Charter of the
United Nations;
Protection against terrorism and campaigns of organized violence ;
Protection against efforts to spread disinformation and undermine demo-
cratic institutions and human rights; and
Efforts at maintenance of world order, the role of law in international
relations, and conflict management among nations.
These are requirements essential to the survival of our democratic institutions
in the complex and difficult world in which we live. In the public debate surround-
ing intelligence activities it can easily be overlooked that our Nation maintains
an intelligence capability because such a capability is essential for peace, strategic
stability, and the survival of democratic values. For example, without a reliable
and effective intelligence effort meaningful arms control agreement would be
Impossible. Moreover, in meeting these national security and foreign policy re-
quirements with limited budget resources, it is especially important to have good
foreign intelligence to ensure wise allocation of such resources. Although we may
wish it not so, effective intelligence capable of meeting those requirements ines-
capably requires secrecy.
The Freedom of Information Act (FOIA) was not in its genesis a measure
aimed at intelligence oversight. Rather, it grew out of reforms in controlling ad-
ministrative actions generally and was developed to apply across the Executive
branch. Indeed, it was significantly toughened by amendments in 1974 to more
effectively ensure public access to agency information in general. But in seeking
to apply to intelligence agencies depending for their effectiveness on secrecy a
FOIA tailored for government-wide maximum access we have created serious
problems for such agencies.' These problems, which include the following, are
well known to this Committee :
A significant chilling effect on individual and inter-service cooperation with
our national intelligence effort based on perceptions or misperceptions of the
effect of FOIA in breaching secrecy ;
Enhanced risk to unique compartmented security of intelligence agencies
as both FOIA requests and searches and personnel associated with such
searches Increase;
1 John Norton Moore is Walter L. Brown, Professor of Law and Director of the Center
for Law and National security of the University of Virginia. He is Chairman of the
American Bar Association Standing Committee on Law and National Security, Vice
Chairman of the Section of International Law of the American Bar Association, and a
member of the Consortium on Intelligence. Formerly he served as Counselor on interna-
tional Law to the Department of State, Chairman of the National security council
Interagency Task Force on Law of the Sea, and Deputy Special Representative of the
President for the Law of the Sea Conference with rank of Ambassador. The views ex-
pressed are the personal views of Professor Moore and do not necessarily reflect the views
of any group with which he is or has been associated.
If by some happy accident a Freedom of Information Act tailored for government-
aide applicability had struck a perfect balance between access and the needs of secrecy
In the intelligence community it would suggest that the balance was overly restrictive
for all other parts of government not sharing the extreme sensitivity of that community.
The reality, however, seems to be the opposite. That Is, FOIA was designed -and then
specifically strengthened-for maximum public access in dealing with agencies less sensi-
tive than the Intelligence community. In that circumstance, not surprisingly, FOIA has
not struck an appropriate balance for applicability to the Intelligence community. There
simply is a difference between the Department of Agriculture and the Central Intelligence
Agency. One obvious difference is the degree of sensitivity in operations for gathering
Information. A less obvious but quite important additional difference is the potential to
respond to out of context or erroneous allegations by providing full information and
public rebuttal. This latter potential Is frequently lacking in intelligence matters.
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Diversion of limited human resources of skilled intelligence personnel to
FOIA requests and litigation. Unlike other agencies dealing with less sensi-
tive issues, a compromise of intelligence sources or methods can be extraor-
dinarily harmful and the consequent stakes require careful attention to
FOIA requests by line professionals with resultant diversion of effort of such
professionals. (Indeed under current FOIA doctrine each request may re-
quire a line by line review by main component professionals of hundreds or
thousands of documents and then for adequate security a double check.)
The risks of mistaken release, judicial overruling of intelligence profes-
sionals, or compromise of security during the litigation process ; risks that
increase as the volume of FOIA requests and litigation increases' ands
The difficulty in coping with a skilled and determined hostile intelligence
effort able to use FOIA government-wide to assemble bits and pieces of a
broader mosaic not necessarily evident in responding to individual requests
(this is usually thought of as a "mosaic problem" but is in addition just as
meaningfully a problem of potential differential expertise and focus between
requester and responder).
In my judgment these problems are serious and are likely to become more
acute as FOIA requests and litigation mount."
De novo judicial review of government national security classifications has become a
widespread practice under FOIA. The September 1982 Edition of the Department of Jus-
tice Case List, at page 225, shows 166 decisions in cases involving classified national
security information, most of them since 1974 when de novo review was required. This
total only includes cases with opinions, not those disposed of just with orders, those still
pending, or those terminated prior to decision. In about a dozen cases, federal courts have
rejected national security classifications, the most recent including Nuclear Control In-
stitute v. NRC, Civil No. 82-1476, D.D.C., May 20, 1983, and McGehee v. CIA. No. 82-1096,
D.C. Cir., Jan. 4, 1983. While these rulings against classification usually did not result
in the compelled release of a classified document, due to a later change of position by
either party, a later decision on appeal or on remand, or withholding sustained under
a different exemption, it is clear that the courts now undertake de novo review of classified
national security documents vigorously and that such review is frequently sought;;
For a fuller discussion of these problems see, e.g. "Impact of the Freedom of Informa?
tion Act and the Privacy Act on Intelligence Activities," Hearing before the Subcom-
mittee on Legislation of the Permanent Select Committee on Intelligence, House of; Repre-
sentatives, 96th Congress, 1st Session (April 5, 1979) ; "Freedom of Information Act,"
Hearings before the Subcommittee on the Judiciary, United States Senate, 97th Congress,
1st Session, on S. 587, S. 1235, S. 1247, S. 1730 and S. 1751 (July 15, 22, 31, Sept. 24,
Oct. 15, Nov. 12 and Dec. 9, 1981) ; "To Restore the Balance : Freedom of Information and
National Security," No. 213 Heritage Foundation Backgrounder (Sept. 23, 1982);; Law,
Intelligence and National 'Security Workshop (sponsored by the American Bar Associa-
tion Standing Committee on Law and National Security, Dec. 11-12, 1979) ; Cole, The
Freedom of Information Act and the Central Intelligence Agency's Paper Chase: A Need
for Congressional Action to Maintain Essential Secrecy for Intelligence File While Preserv-
ing the Public's Right to Know, 58 Notre Dame L. Rev. 350 (1982) ; Report with Recom-
mendations of the Section of Administrative Law of the American Bar Association to the
House of Delegates (Dec. 1982) (among other issue, this report focuses on the Important
need for relief in the standard for judicial review of intelligence agency classification
decisions) ; Report with Recommendations on the Freedom of Information Act of the
American Bar Association Criminal Justice Section (June 1983) ; "Recommending FOIA
Amendments as Desirable for the National Security," Report to the American Bar Associa-
tion Standing Committee on Law and Nationa] Security of the Committee Task Force on
Freedom of Information Changes (Dec. 16, 1982). See particularly the testimony of
William J. Casey, Admiral B. R. Inman and Frank C. Carlucci respectively on Sept. 24,
1981 before the Subcommittee on the Constitution of the Senate Committee on the
Judiciary, Feb. 20, 1980 before the Subcommittee on Government Information and Indi-
vidual Rights of the House Government Operations Committee, and July 21, 19811 before
the Senate Select Committee on Intelligence.
In addition to these policy problems in applicability of FOIA to the intelligence com-
munity there is also a lurking constitutional issue concerning potential interference with
executive privilege and specific instances possible interference with areas of Presidential
authority. It should be recalled that President Ford vetoed the 1974 amendments to FOIA
based in large part on constitutional concerns relating to separation of powers in the
national security area. See, for example, with respect to the underlying constitutional
issue John Jay writing in The Federalist in 1788: "There are cases where the most useful
intelligence may be obtained, if the persons possessing it can be relieved from apprehen-
sions of discovery. Those apprehensions will operate on those persons whether they are
actuated by mercenary or friendly motives, and there doubtless are many of both decrip-
tions, who would rely on the secrecy of the president, but who would not confide in that
of the senate, and still less in that of a larger popular assembly. The convention have [sic]
done well therefore In so disposing of the power of making treaties, that although the
president must in forming them act by the advice and consent of the senate, yet he will
be able to manage the business of intellligence In such manner as prudence may suggest."
[John Jay, in The Federalist, ed. Jacob E. Cooke (Middleton, Conn. Wesleyan my Press
1961), at 434-35.]
And the Supreme Court writing in United States v. Curtiss-Wright Export Corp.:
"[The president] has his confidential sources of information. He has his agents In the
form of diplomatic, consular and other officials. Secrecy in respect of information gathered
by them may be highly necessary, and the premature disclosure of it productive of harm-
ful results. Indeed, so clearly is this true that the first President refused to accede to a
request to lay before the House of Representatives the instructions, correspondence and
documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which
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Although these problems are generally understood there is another and in a
sense even more pervasive problem in seeking to hold agencies engaged in secret
operations to accountability through public release of bits and pieces of such
operations. Effective public accountability requires that the full context of cir-
cumstances surrounding a policy be known. By the nature of effective intelligence,
however, the intelligence community is generally not able to make known the full
circumstances surrounding an out of context allegation or bit of information. To
encourage public access to what must of necessity be only bits and pieces of in-
formation, then, may hold real risks for genuinely informed public debate about
such issues. In some cases such partial release may in fact contribute to public
misinformation. And to talk of public accountability as a reason for public access
to the process of intelligence when it is conceded on all sides that properly classi-
fied information will not be made available-that is, that the core of intelligence
methods and operations cannot be publicly available-is to stretch the normal
sense of the term. The reality since the time of the Continental Congress has been
that the appropriate mechanisms for oversight of the intelligence community are
the special mechanisms of the Executive and Legislative branches of the govern-
ment that are directly responsible to the democratically elected President and
members of Congress.
This Select Committee and the careful oversight mechanisms established by
law for control of the intelligence community (including the President and the
National Security Council, the President's Intelligence Oversight Board, the
Attorney General, the structure of Executive orders and laws governing intelli-
gence operations, internal agency oversight and inspectors general, and the care-
full process of Congressional scrutiny through appropriations, reporting require-
ments and authorization measures) are the appropriate mechanisms for intelli-
gence oversight.' This is not to suggest that intelligence methods and objectives
will alone escape public debate in a democratic society but rather to remind us
that fully informed oversight of such activities will only be provided by the ap-
propriate Presidential and Congressional oversight mechanisms that are in fact
fully informed.
Although the American Bar Association has not adopted an Association position
on these issues, the Standing Committee on Law and National Security has for
some time sponsored a Working Group on National Security and the Freedom of
Information Act chaired by Robert Saloschin under the general direction of John
Shenefleld as Chairman of the Committee's Task Force on the Justice System and
National Security. The work of this group has fully reflected awareness of the
special problems presented in applicability to the intelligence community of a
FOIA intended for government-wide application. and the need for appropriate
relief for that community.'
Mr. Chairman, with these general remarks as background, I strongly support
prompt passage of S. 1324 now being considered by this Committee. The principal
mechanism of this bill, to provide relief to the Central Intelligence Agency from
the burdens of searching and reviewing operational files, as opposed to product
files, should alleviate some of the more acute problems associated with applicabil-
ity of FOIA to the Agency .7 Operational files, in dealing with sources and methods,
are particularly sensitive and any perception or misperception as to their public
availability has an acute chilling effect on sources. At the same time since these
files have not in practice been subject to public release under FOIL their exclu-
sion from the burdens of searching and reviewing will not diminish any public
information now available under FOIA. And the release of Agency resources from
the needless search and review of operational files should enable more timely
response to requests concerning product files.'
was recognized by the House itself and has never since been doubted. [299 U.S. 304, 320
(1936)]
And more recently in its opinion in United States v. Nixon the Supreme Court said it
would accord to the President "the utmost deference" in intelligence matters. United
States v. Nixon, 418 U.S. 683, 706, 707, 711 and 712 n.19 (1974).
5 Much of this strengthening in mechanisms for oversight of the intelligence com-
munity, including establishment of the Senate and House Select Committees on Intelli.
gence and the President's Intelligence Oversight Board, has occurred after enactment of
FOIA.
6 There are also other entities within the ABA which are concerned with these problems
and have been studying the matter. In fact, resolutions dealing with proposed amendments
to the Freedom of Information Act will be the subject of debate in the ABA House of
Delegates in August, after which I am sure the Association would be glad to report back
to you any formal position it may take on these matters.
7 This bill if enacted would constitute a statute within the meaning of FOIA exemp.
tion three. Indeed, if it did not, there would be no purpose in enacting it.
8 This bill would also properly restrict the ability of nonresident aliens to make "first-
person" requests for information concerning themselves under the Freedom of Informa-
tion Act. FOIA was designed principally to promote an informed citizenry. Moreover, it
has always been a particular anomaly under FOIA that United States citizens as taxpayers
must subsidize such foreign requests.
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98
Mr. Chairman, and members of the Committee, in S. 1324 the Committee lwould
seem to be in the enviable position of having legislation that would significantly
meet some of the problems associated with applicability of the necessarily more
generalized government-wide FOIA to the Central Intelligence Agency without
curtailing the real world information flow of the Act. This bill is likely to be
-and should be-supported by persons of all political persuasions.
Finally, Mr. Chairman, let me state that although I support S. 1324 I believe
that ultimately the only satisfactory solution to this problem is a more general
exclusion for the intelligence community from the requirements of FOIA. No
other Nation in the world subjects its intelligence community to the perception or
misperception of public disclosure on demand. And in my judgment the public
benefit of FOIA applicability to the intelligence community-and there will
always be some-is outweighed by the risks to democratic institutions tl%rough
weakened intelligence and the risk of public misinformation inherent in neces-
sarily incomplete disclosures about intelligence activities.
Senator DURENBERGER. Thank you very much, Mr. Moore. ,John
Shenefield, welcome.
May I make a point before you start? I believe it is my understand-
ing, and you can correct me if I err here, that while I identified', your
earlier identities associated with the ABA in particular, I guess', it is
my understanding that you are both testifying today as to your per-
sonal views on the legislation. Am I correct?
Mr. MOORE. That is correct, Mr. Chairman. My testimony and that
of John Shenefield is completely in our personal capacity.
Senator DURENBERGER. Thank you very much.
STATEMENT OF JOHN SHENEFIELD, MEMBER, ABA STANDING
COMMITTEE ON LAW AND NATIONAL SECURITY
Mr. SHENEFIELD. Mr. Chairman, on the assumption the prepared
statement will be included in the record, 'let me simply say three brief
things. First, I support S. 1324 virtually without reservation for five
reasons : It will result in no lessening of the amount of information
hitherto available; it aborts the risk of human error that may result
in the fatal compromise of highly sensitive intelligence operations; it
avoids the dedication of elaborate resources to what is essentially a
futile task of reviewing documents that can in the end never be released
in any event and thus frees up intelligence professionals to do some-
thing else; fourth, it inevitably will reduce the backlog in the litiga-
tion over the backlog, and that is a benefit; and finally, it will reduce
the reluctance to cooperate of those abroad who simply do not under-
stand our general predisposition in favor of disclosure.
The second point is that four concerns have been raised this morn-
ing, and I would like to address each of them briefly. As to judicial
review the bill is silent. I think a fair interpretation of the language
would allow one to conclude that judicial review is not as a practical
matter available in the typical case.
To my way of thinking, that is appropriate. The problems that are
raised as reasons for having judicial review seem to me more properly
Indeed, it is difficult to see how meaningful judicial review can be
achieved in this area. For the sake of the historical record, I remind
the committee that the Carter administration's recommendation in this
area not only called for a certification process such as is called forihere
or a designation process, but the recommendation included language
that would explicitly preclude judicial review.
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If, however, in the wisdom of the committee and the Congress some
sort of judicial review is thought to be essential, .then it ought to be
quite clear that the standard is one of exceeding deference to the judg-
ment of the CIA in this area. I would propose a standard of non-
frivolousness or in the absence of evidence of lack of integrity, abuse
or corruption, or at the very least an arbitrary and capricious standard.
It does seem to me that de novo review in this area is absolutely
inappropriate.
As to the question of abuse or illegality, once again this seems to me
to be more properly the subject of oversight. There is this committee.
There is its House counterpart. There are the internal Central Intelli-
gence Agency controls.
There is the Intelligence Oversight Board in connection with il-
legality. There is the Attorney General in connection with actions
which may be unlawful. It seems to me where abuse or illegality is at
issue, oversight and not disclosure is the appropriate mechanism.
Next, so far as backlog is concerned, there seems to be very little
reason to put anything explicitly in the act. If I were sitting as chair-
man. of this committee, it seems to me the oversight and authoriza-
tion process requiring explicit dedication of resources laying down
standards expected to be adhered to would be a more than adequate
way to deal with the problem.
Finally, this bill does not deal with other agencies of the intelli-
gence community, and it is entirely supportable on that basis. If other
agencies come to this committee asking .for some similar kind of treat-
ment, it would seem to me that they ought to be taken up on a case-by-
ease basis.
In short, Mr. Chairman, I support S. 1324 and do so wholeheartedly
because I believe that in this narrow instance the exception to our
general rule of access to information is thoroughly justifiable. Here
the balance in ' favor of secrecy overwhelms what is the theoretical
benefit of access to sensitive information that can never in the end be
released. I have the firm belief that in this small area secrecy must be
preserved so that we do not unnecessarily jeopardize the security of
the democratic institutions that make the FOIA in general of such
importance.
It seems to me that our Nation which has gained so much strength
from the debate of an informed citizenry can in this instance protect
that strength most effectively by imposing the discipline of secrecy on
the operational files of the Central Intelligence Agency.
Thank you, Mr. Chairman.
[The prepared statement of John H. Shenefield follows:]
PREPARED STATEMENT OF JOHN H. SHENEFIELD
Mr. Chairman and Members of the Committee : It is an honor to appear here
today in support of S. 1324, a bill to amend the National Security Act of 1947
to regulate public disclosure of information held by the Central Intelligence
Agency.
This bill addresses a problem caused by the intersection-some would say the
collision-of two powerful postulates on which our system of government is
based. First, our society is organized as a democracy in which the most funda-
mental decisions are made by our citizenry at the ballot box. To that extent the
fate of the Republic is in the hands of voters who we hope will be endowed with
the wisdom of educated choice that can come only from the availability of in-
formation. But second, and cutting across the need for freely available informa-
tion, is the fact of life that secrecy is essential to our national security in those
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narrow areas in which the dangers caused by disclosure outweigh the benefits.
The application of the Freedom of Information Act to our intelligence community
is the best possible example of one fundamental goal in uneasy tension with an-
other. The task of S. 1324 is to address the problems that have been 'caused
by that tension, and to adjust the competing values.
An informed citizenry is one of our society's highest ideals. The First Amend-
ment to the Constitution is eloquent testimony to the importance we as a Nation
place on freedom of expression as a prerequisite to the emergence of the, truth.
Our founding fathers were confident that truth, if given a chance, would prevail
in the marketplace of ideas. Much of our public policy is dedicated to ensuring
that the competition in the. marketplace of ideas is fair and unfettered. Educa-
tion policy, communications policy, political campaign and contribution laws, the
law of libel, and patent policy are only a few examples of decisions by our society
to emphasize the importance of making information available, in contrast to
other competing values. To these ends, we have always valued a free press,
Unruly as at times it may be; a diverse academic community, as searching and
persistent as it should be ; and an inquiring citizenry, as awkward as that can
be-all dedicated to ferreting out and publishing facts, even when they embarrass
or are uncomfortable or may cause inconvenience, even injury. We have insisted
on erring on the side of disclosure.
An important component of our effort as a Nation to be sure that our citizens
have access to the facts is the Freedom of Information Act. As enacted originally
and then as amended, the Act was designed to improve the access of the public
to information about our government. No longer was it sufficient for government,
in resisting requests for information, simply to rely on vague expressions of
reluctance or privileges of uncertain scope. The Congress on behalf of the people
had laid out the contours of those narrow categories in which, at least for a
time and in the service of some supervening justification, the public could be
denied information. Even in those areas, Congress established independent
judicial review to ensure that the government lived up to its obligations.
The area of national security should not be a generalized exception to our pre-
disposition in favor of public disclosure of information. Indeed, on essential com-
ponent of true national security is an informed citizenry and its support that, as
a result of education, it gives more confidently to its government. Surely no area
of our national life is more important, and in no other area of government activity
are the concerns of the public to understand and help make decisions more com-
mendable. In a world in which war, terrorism and intrigue are commonplace, we
as Americans not only have a right to know, but the duty to find out, to analyze
in a hardheaded fashion and to come to sound conclusions, especially when the
implications of those conclusions are grave and the actions called for are difficult
and momentous. When our sons may be called. upon to give their lives to protect
the national security, when our cities are held in a strategic. balance of terror,
when our resources are so completely committed to establish and maintain our
defense, there can be no thought that the area of national security is immune
from public inspection.
But we do not live in a benign world. We confront adversaries who do not share
our goals nor play by our rules. Information that might be of some relevance in
public debate may be the same information that confers a decisive strategic
advantage on those who are antagonistic to our ideals, to our interests, indeed to
our very existence. It is a matter of common sense, then, that there are areas of
our national security that cannot be open to public view and that chief among
these are the operational decisions of an effective intelligence service. Moreover,
it follows equally that certain essential files of information at the core of the
operation of our intelligence service contain information so sensitive that every
step must be taken to safeguard it against discovery or release.
Extraordinary steps are in fact taken to protect such information Classification
standards, while recognizing the importance of an informed public, nevertheless
permit withholding of information in those areas where disclosure could reason-
ably be expected to cause damage to the national security (E.O. 12356). The orga-
nization of the sensitive files in the intelligence community is compartmented so
that only those persons with a need to know have access and it is accordingly
much more difficult for any individual to have knowledge of facts for which he
has no such need to know.
It does not follow, however, that there is no legitimate room for public inquiry
in the intelligence community. Where intelligence information has been furnished
to policy-makers and has formed a basis for important national policy decisions,
inquiry-if not always disclosure-is appropriate. Where there are non-trivial
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allegations of illegality or impropriety the public has a right to ask questions.
Unfortunately, the Freedom of Information Act, as presently structured, does
not in the accommodation of these important predicates for public inquiry give
sufficient weight to the enormous sensitivity of the central operational files. In
an effort to strike a balance appropriate to government across-the-board, the
FOIA properly reveals important aspects of the intelligence community to the
healthy scrutiny of the American people. But to the extent it requires the search
and review of files that can in the end never be made public, FOIA in this in-
stance is futile, and possibly even disastrous.
The problem arises in this stark form because the Freedom of Information
Act applies fully to the Central Intelligence Agency. A request requires the search
and review of literally all files likely to contain responsive information. This
can involve the search of over 100 files where a complicated request is made.
Information can be refused on the grounds that it is properly classified (Section
552 (b) (1)) or that it is specifically exempted from disclosure by statute (Sec-
tion 552(b) (3). In the case of the Central Intelligence Agency, a (b) (3) exemp-
tion may be triggered by Section 102(d) (3) of the National Security Act of
1997, providing that the Director of Central Intelligence shall be responsible
for protecting the intelligence sources and methods from unauthorized disclosure.
The result of this process is the release on occasion of minute, frequently in-
comprehensible, disconnected fragments of documents, which are is'ands of un-
protectable material in the vast exempt ocean of classified and sensitive in-
formation. What emerges is of marginal value to informed discourse and on
occasion, because it is out of context, is highly misleading and indeed distorting
to scholarly analysis and public debate.
And yet this dubious result is achieved at the price of expenditure of enor-
mously scarce resources. The systems of search, review and confirmatory review
necessarily in place in the CIA to avoid release of information that might com-
promise extremely sensitive operations takes the time not of government clerks,
but of intelligence professionals. Furthermore, even with a system of review
redundancy, the potential for human error is present. Indeed, there are examples
of sensitive material mistakenly released. Moreover, we are told that allied
intelligence services and overseas contacts that are the sources of much of the
intelligence in our possession are so concerned about the applicability of the
Freedom of Information Act to the CIA, from initial requests to judicial review,
that they are increasingly reluctant to -put their own lives on the line in the
service of our government. In sum, the applicability of the Freedom of Infor-
mation Act to these sensitive files yields very little information, if any, on the
one hand, but it holds the -potential for mistaken disclosure, and tends to
constrict the flow of information, on the other.
As this problem has become evident in recent years, there has been a series
of efforts to deal with it. Differences that exist now concern only the mode of
solution. What is clear is that there is a ? broad consensus that some solution
is very much in order. The standard that is now generally agreed upon is that
exemption from the Freedom of Information Act should cover only information
that release of which is virtually never appropriate and that it is essential
to safeguard for the efficient functioning of our intelligence community. The
complete removal of a category of information from the Act should be as
narrowly defined as is possible.
In support of S. 1324 as an effective solution that meets this standard, we
can say several things. First, it will result in virtually no lessening of the amount
of information that has hitherto been available from the intelligence commu-
nity. Second, it avoids the risk of human error that may result in the fatal
compromise of highly sensitive intelligence operations. Third, it avoids the
dedication of elaborate resources to the essentially futile task of reviewing
documents that can in the end never be released in any event, and thus frees
up intelligence professionals to do the task for which they are best suited.
Fourth, it inevitably will reduce the backlog and the litigation over the back-
log, so that requests that can be responded to will be addressed in a more timely
fashion. And finally, it will reduce the reluctance to cooperate of those abroad
who do not fully understand our general system of disclosure of information,
and thus it will enhance the effectiveness of our intelligence capability.
S. 1324 is a modest compromise that safeguards the essential central opera-
tional files of our intelligence capability at the CIA. It is carefully crafted to
avoid an unnecessarily broad exemption from the Act and its underlying policy.
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It preserves access to finished intelligence, information concerning authoritatively
acknowledged special activities, studies of intelligence prepared for training
purposes, and even raw intelligence supplied to policy-makers in its original
form to assist in policy decisions. It avoids closing off access to information con-
cerning illegal or improper intelligence activities. S. 1324 is an astute bend of
practical effectiveness that avoids violating an important policy preference in
favor of informed public debate.
In short, I support S. 1324 and do so wholeheartedly. I do so because I believe
that in this narrow instance, an exception to our general rule of access to informa-
tion about our government is thoroughly justifiable. I do so because here the
balance in favor of secrecy overwhelms the theoretical benefit of access to sensi-
tive information that can never in the end be released. I do so in the firm belief
that in this small area, secrecy must be preserved, so that we do not unneces-
sarily jeopardize the security of our democratic institutions that make this entire
issue of such importance. This Nation, which gains so much strength from the
debate of an informed citizenry, can in this instance protect that strength most
effectively by imposing the discipline of secrecy on the operational files of the
Central Intelligence Agency. S. 1324 successfully mediates that policy tension
and deserves speedy enactment.
BIOGRAPHICAL STATEMENT OF JOHN H. SHENEFIELD
John H. Shenefield was the Associate Attorney General of the United States
from 1979 until 1981, and in that capacity presided over the development of
recommendations for the amendment of the Freedom of Information Act. Prior
to that time, he had been Assistant Attorney General in charge of the Antitrust
Division of the U.S. Department of Justice. He is currently a member of the
American Bar Association Standing Committe on Law and National Security and
head of its Task Force on the Justice System and National Security. He is,also
Chairman-designate of the International Trade Committee of the American Bar
Association Section of Antitrust Law. He currently practices law as a member
of the firm of Milbank, Tweed, Hadley & McCloy.
Senator DURENBERGER. Thank you very much. I just want to make
one comment on the oversight process. Whether you get your oversight
from the rights of the public, from responsible internal oversight
which, in my experience here in 41/2 years, we certainly have and it has
worked well, I believe, in most cases, through two administrations c or
from this committee is a matter we will always debate, I am sure.
I have the least amount of faith in the oversight that comes from
those before whom you are testifying today because by the time a
matter reaches our attention, it probably has reached everyone else's
in the world. So I have a concern about always, and I think this is our
problem in each of these cases, trying to find a delicate and appropriate
balance which is always founded on some trust, whether the public
trust in all of us or a trust that we have to have in each other in this
process.
It is an ongoing and a difficult process, and one where one violation
blows the whole system, one that in a political sense mandates in some
cases inappropriate measures to counter the particular violation. So I
think it is appropriate for you to make the observations you have with
the background that I know you have, and I appreciate that.
I have just one question since you commented on judicial review,
and maybe both of you are knowledgeable on the subject. Can you tell
us where in the past judicial review has failed in FOIA cases, particu-
larly regarding the issue of secrecy that relates to operational files?
Mr. SHENEFIELD. There have been situations, Mr. Chairman, in
which judicial review has at least in the early instances risked dis-
closure of information that responsible officials at the Central Intelli-
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gence Agency had thought should not be disclosed. The recent McGee
case would be be an example of a judge telling the CIA that it may
not have done its job particularly well and that at least the lower court
should go back again and look at a particular set of decisions.
In addition to that there was an opinion by Judge Gesell that finally
was mooted out before the Supreme Court stage in which the same sort
of situation occurred. The Judge was in the position of telling the Cen-
tral Intelligence Agency that it ought to do its FOIA job better, or do
it again.
Now it seems to me, quite apart from the constitutional question, that
that may well be appropriate-though I would not favor it-in cases
where information is subject to the act. Here we are talking about a
process which by definition is outside the act, that is to-say, a designa-
tion of certain files thought not to be appropriate even for search and
review under the act.
It seems to me to go that step and ask for at least de novo judicial
review is virtually unthinkable.
Senator DURENBERGER. Do you want to add any comment to that?
Mr. MooRE. I would like to comment on that if I could. It seems to me
that the test of the workability of judicial review here is not solely the
question of how many times the intelligence community has been up-
held or overturned on appeal. One could in fact count the cases either
way as either evidence of success of judicial review if it were a large
number because of the importance of having it, or the failure of judi-
cial review if it were a small number by indicating that in those par-
ticular settings why do we have the system in the first place if the
intelligence community is never overturned.
Rather the real cost of judicial review is one of the perceptions or
misperceptions that we are creating with respect to the potential to
operate within the intelligence community and maintain the secrecy of
actions. That is, it is highly likely that if persons in the field do believe
there is a potential for judicial review in which their actions might be
made public over the objections of someone in the intelligence commu-
nity that it is going to have a chilling effect on intelligence.
Mr Chairman, aside from the general principle, I might focus spe-
cifically on the language of this bill on-judicial review since this seems
to be a rather central point. There are really two questions here. One is
what ought to be the law on reviewability of this question and second,
what is the most likely interpretation of the language that we have in
this particular bill.
I have no difficulty in saying what the law ought to be in this case is
no reviewability whatsoever. This is an area that you will recall is an
amendment of the National Security Act in which we grant discretion
to the head of the Central Intelligence Agency for the protection of
sources and methods. This is absolutely the most sensitive area of clas-
sified information that we have, and if there is any area that it seems to
me is not appropriate for basic judicial review it is precisely this kind
of area.
With respect to the precise interpretation of the language of this
bill, I think there are a number of possibilities. One, it is entirely pos-
sible as an interpretation here that a court might hold that the amend-
ment of this Act in the context of something appearing in the 1974
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National Security Act would in fact be a displacement of any review
standards under FOIA in this particular case and that there would be
no revaluating here. There is an analogous setting an ongoing debate
between a number of courts with respect to Internal Revenue Service
provisions as to whether since they were later in time certain of them
have displaced FOIA provisions on judicial review.
Whatever the result of any question of displacement with respect to
this act on judicial review, and I personally would regard that as an
appropriate and good decision to make clear that there was no such
reviewability, the normative standard in this particular case that
would be applied under the FOIA reviewability (b) (3) exemption
is clearly the question of: Is the material exempt under a statute that
otherwise exempts these materials?
In that context I have no doubt that this bill with its language as it
appears of the discretion and the designation by the director of Central
Intelligence would in fact. be nonreviewable. Indeed, even without that
language it would seem to me that the best interpretation of this would
be that there would be no reviewability and should be no reviewability
of such designations in such a routine area entrusted by statute to the
Director of the Central Intelligence Agency.
Senator DuRENBERGEL Thank you both very much for your testi-
mony. We appreciate it a great deal. I regret more of our colleagues
were not here to hear it.
Our next witness is Dr. Anna Nelson. Before you start your testi-
mony, Dr. Nelson, I have to find out whether my body is needed in a
markup here. I am sure you are anxious to finish. Do you have just 4
minutes you could lend me so I can go have my body committed to re-
port out the Clean Water Act? I will be right back.
[A brief recess was taken.]
Senator DuRENBER:GER. I am sorry. Before we start I am going to
make part of the record, without objection, the statement that Senator
Biden had asked to be made part of the record.
[The prepared statement of Senator Biden follows:]
PREPARED STATEMENT OF SENATOR BIDES
The issue of how CIA should be covered under the Freedom of Information
Act has been with the Intelligence Committee almost from its first day. It oc-
cupied the Committee along with the original Intelligence Community charter
bills that would have provided statutory frameworks for the activities of U.S.
Intelligence agencies. Like many of the intelligence charter issues, that of, the
appropriate responsibilities for CIA under FOIA typifies the problems that we
face when deciding on what authorities and prerogatives to allow for secret
intelligence activities in a democratic and free society.
While fully accepting the value of secret intelligence activities, many Ameri-
cans have argued that they must co-exist with diligent Congressional oversight
to ensure that representatives of the American people, at least, are aware of
the nature of these activities. Many Americans have further argued that some
of these activities of the intelligence agencies must be subjected to periodic and
appropriate public scrutiny that can be effected only through the access to
intelligence information that the Freedom of Information Act provides. I have.
been a strong proponent of both these arguments-for comprehensive Congres-
sional oversight and for FOIA-in discussions of the democratic context in
which the intelligence agencies must operate.
However, I have also been sympathetic to the concerns of the intelligence
agencies about the labor and security burdens that FOIA has placed on them.
The intelligence agencies' experience of spending hundreds of hours on review-
ing highly sensitive documents that anyone with the least familiarity with intel-
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ligence operations and techniques knows will never see the light of day can only
have been frustrating. I commend the agencies for their conscientious com-
pliance with the FOIA. The record of Federal courts supporting the actions of the
CIA in response to FOIA requests is proof, I think, of how seriously CIA has
taken its responsibilities in spite of its highly valid concerns about the effect of
the Act on its primary business-that of collecting and analyzing intelligence.
On the other hand, it has seemed to me on occasion that the Intelligence Com-
munity has, at times, overstated some of its criticisms against FOIA. Descrip-
tions of the security, problems posed by FOIA is an example of this sort of over-
statement. I have no doubt that several foreign governments and possible indi-
vidual sources of assistance have been reluctant to cooperate fully with the CIA
because of their understanding or misunderstanding of the way in which the
Freedom of Information Act operates.
However, far outweighing the IOTA in accounting for such reluctance to co-
operate must be the reputation that this and previous Administrations have ac-
quired for not being able to protect secrets that provisions in the IOTA regarding
classified information have protected. We on the Intelligence Committee often
receive information with warnings to protect it because disclosure could result in
the exposure of intelligence sources. Such disclosure could also result in the loss
of individual lives. Time after time, we have seen such information arrayed on
the front pages of American newspapers within (lays of-if not before-its receipt
by the Committee. These sorts of actual and repeated disclosures of information
would be a dramatic and persuasive deterrent to an individual or a foreign gov-
ernment who was thinking of cooperating with the CIA. These serious compro-
mises probably far outweigh any hypothetical speculation in which possible co-
operating individuals might engage about the I OIA.,
In addition, S. 1324 has the misfortune of appearing during a period when a
range of actions regarding the availability of government information have made
many Americans dubious about any proposals which might restrict access to
information. Executive Order 12356, of last April, and the President's 'larch 1983
"Directive on Safeguarding National Security Information" are two quite obvi-
ous examples of this trend toward restricting the public's access to information.
It is an ironic but established fact that this Administration with its scorn for the
values of Government and the people who work in it has consistently tried' to
limit access of the American people to information about the working of govern-
ment. Fortunately, S. 1324 is a refreshing change from these broad attempts to
reduce the availability of government information. It recommends quite specific
and narrow changes in response to identified problems. It expresses a spirit of
moderation and compromise. It is based on concrete experience. It appears to
have the support of a spectrum of political outlooks. It appears to be, in short, a
reasonable solution to the problem of CIA's spending the time. and talents of
experienced intelligence officers on the review of mountains of documents that
have virtually no chance of being disclosed under the Freedom of Information
Act.
There are several important issues raised by S. 1324 that these hearings can
address. High among them is that information on many of the intelligence activi-
ties most in need of public scrutiny would probably be the sort that would be
contained in operational files and therefore excluded.
I have no reason to doubt the integrity of U.S. intelligence officers but if there
are in the future improper, illegal, or wasteful intelligence activities, I doubt
that they will be perpetrated by analysts. They will occur in the course of
operations.
It is important that information on these sorts of operations that are often
of great interest from the point of view of public policy, individual accountability,
and history continue to be accessible to the American public.
Secondly, it is essential that this Committee fully explore possible procedures
for evaluating whether operational files that have been exempted by the DCI
from the FOIA have been accurately and appropriately designated. Some sort
of judicial review is one possible procedure. There are others worth considering.
I think that today's witnesses can make an important contribution in helping
us find a solution to these particular points.
Senator DURENBERGER. I will also make part of the record a letter
that would be of interest to you, Dr.- Nelson, relative to information
available to historians, from John Stein, Deputy Director of Opera-
tions for the Central Intellligence Agency.
[Letter follows :]
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CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., June 28, 1983.
HOD. BARRY GOLDWATER,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : One further point that I would like to add to my testi-
mony last week regarding the proposed FOIA legislation concerns the OSS files.
This has to do with whether information in those files would be available to his-
torians and others who could properly benefit from that information. I want to
assure you that I do not intend to ask the Director to designate OSS files as
falling in the category of files which would be exempt under the new Bill. The
OSS files would therefore continue to be subject to search, with the information
of historical value available to requesters. I trust that this will clarify the sub-
ject should the matter be raised in the Committee's hearings.
Sincerely,
JOHN H. STEIN,
Deputy Director for Operations.
Senator DURENBERGER. We welcome Dr. Anna Nelson, professor of
history at George Washington University, testifying today on behalf
of the National Coordinating Committee for the Promotion of
History.
STATEMENT OF DR. ANNA B. NELSON, DEPARTMENT OF HISTORY,
GEORGE WASHINGTON UNIVERSITY, NATIONAL COORDINATING
COMMITTEE FOR THE PROMOTION OF HISTORY
Ms. NELSON. I am here today specifically representing over 20,000
historians who are members of the Organization of American His-
torians [OAH] and the American Historical Association [AHA],
the two largest associations that support the National Coordinating
Committee.
We appreciate your invitation to appear before this committee to
discuss S. 1324. We also recognize the necessity to protect sources and
methods utilized in intelligence operations and find it reassuring that
the CIA now recognizes the need to ensure this protection within the
Freedom of Information Act.
However, certain aspects of this bill are very troubling to historians
whose perspective on information and documents often differs from
that of journalists, lawyers or other users of information. Today we
would like to discuss some of our reservations and point to aspects of
S. 1324 that would not only have an impact on the work, of historians
but upon the knowledge and understanding of American foreign
policy by future generations of Americans.
First we would like to examine the ramifications of any legislation
that exempts an entire category of files from search and review. As
we understand it this bill exempts neither certain information nor
certain file folders but rather a very broadly defined category of
files; that is, all the files from the Director of Operational Activities,
that sort of thing.
The CIA states that these files only contain information on the
sources and methods of intelligence operations. Obviously we have
no information on the CIA file system. Ms. Lawton did not seem to
have any information this morning, but those of us who have spent
hours in the National Archives, the Federal records centers or Presi-
dential libraries know that operational files. of Government agencies
usually go far beyond sources and methods. Traditionally they include
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the, policy, guidelines and the planning process of such operational
activities. They are, in fact, the heart of governmental decisionmak-
ing. Indeed, an indirect definition of operational files is in this bill.
In section 2(a) (10) we are told that the exclusion of operational
files will "leave files containing information gathered through intelli-
gence operations accessible to requestors." If the exemption of oper-
ational files will leave access only to those containing intelligence
information then it is clear that these operational files must contain
the information vital to an understanding of policy and planning.
In addition, if an entire category of files is exempt from search and
review there will surely be a continual temptation on the part of
officials to place ever increasing numbers of documents in file cabinets
marked operational, including those that might be merely embar-
rassing. Broadly defined, is there any file of a Government agency
that does not deal with "operations?"
Next, we would like to point out that under S. 1324 these opera-
tional files will be exempt from the Freedom of Information Act for-
ever. The time is long past when the history of American foreign pol-
icy can be written from the files of the State Department. The very
passage of the National Security Act in 1947 was a recognition that
foreign policy decisions require 'the combined efforts of diplomats,
strategists, and experts in what was then called "psychological war-
fare." Therefore, historical knowledge of our foreign policy must
now come from the documents of the State Department, the Defense
Department, the White House, and even the CIA.
With some exceptions historians of what is.now called national se-
curity policy seek documentation from 'a period 20 to 35 years ago, a
period that coincides with access to some documents in the Presiden-
tial libraries, the National Archives and the historical series of the
Senate Foreign Relations Committee. In regard to what Ms. Lawton
said this morning, I would like to say that there has been a great deal
of systematic review within agencies. This review does not involve all
the files in an agency if they are in accord with the Federal Records
Act. Only those files which have been judged historically important
and, therefore, of permanent value are reviewed. That is the only
records that have become part of the Nation's archives are subject to
systematic review. That is a much smaller body and, therefore, makes
it much easier to do this sort of declassification.
Experience has shown that information requiring absolute secrecy
at the time of its origin can be open to the public after passage of time
with absolutely no harm to national security. Recent publications of
the Senate Foreign Relations Committee's historical series is certainly
a case in point. Testimony given in executive sessions behind closed
doors and even off the record could now be published without harm
to either individuals or national security. Unfortunately, S. 1324 fails
to recognize this fact. Under this bill the files of 1953, for example,
will be every bit as inaccessible as the files of 1983. There is no cut off
date for the exemption of these files. Since CIA files have never been
sent to the National Archives and since they are quite unlikely to be
sent in the foreseeable future, information on foreign policy guide-
lines or planning in which the CIA participated will continue to be
available only under the Freedom of Information Act. Thus, a plan
for eventual access to these documents is absolutely essential.
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. 108
Third, we would like to point out that S. 1324 is ambiguous about the
fate of another category of documents. that is absolutely crucial to
understanding contemporary American policy. It is unclear under the
blanket exemption of S. 1324 that historians would gain access to infor-
mation that originated in operational files but can also be found outside
the confines of the CIA's. The Federal Government classifies informa-
tion, but historians use documents, and often documents containing
information that originated in the CIA are found in other files. For
example, National Security Council documents circulate to the State
Department, the Defense Department, and the CIA among other
agencies.
Many NSC documents are in Presidential libraries. Currently before
an NSC document can be declassified, this document must be cleared by
each participating member of the National Security Council. Now
under S. 1324 if a historian were to request the declassification of an
NSC document that was filed in the operational files of the CIA, would
this document automatically remain classified because it was deemed
operational? We do not know. Clearly this kind of question should be
clarified since the supporters of S. 1324 probably had no intention of
closing off this category of documents.
To conclude, then, in order to clarify provisions in S. 1324, we recom-
mend the following changes. First, the definition of operational files
should be narrowed. The CIA. should be allowed to exempt only those
specific files that include information on the sources and methods of
intelligence gathering.
Second, statutory provision should be made for the search and review
of all files after a specified lapse of time; 25 or 30 years would conform
to current declassification procedures in most agencies.
Third, the exemption from search and review should be limited only
to those documents or information that can be found in no other Gov-
ernment agency or organization.
We believe these recommendations would support the efforts of the
CIA to protect their most sensitive records without depriving history
of important documentation.
Mr. ' Chairman, 1983 marks the 200th anniversary of the signing of
the Treaty of Paris. Clandestine operations, spies, secret diplomacy
have always been as much a part of our diplomacy as any other great
nation of the world. We have had great foreign policy successes and
monumental failures, like other nations of the world. But we differ
from many other nations in that we have always been able to face up to
all facets of our past.
Fundamental to our democratic society is the fact that we have tra-
ditionally allowed and often encouraged a thorough examination of
past policies, successful and unsuccessful, in order to enrich our knowl-
edge of the present and the future. In the final analysis, our under-
standing of our past can only come through access to the documentary
record. It is an example.of our open society that the State Department
records in the National Archives include some 19th century records
labeled "Expenses, Secret Agents." It enriches the knowledge of our
own time that the most recently published volumes of documents from
the State Department include candid discussions in the NSC of 30
years ago over intervention in Indochina. As foreign policy becomes
subsumed by national security policy, the records of the CIA will be-
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come even more essential to future generations of Americans seeking
an understanding of American history.
In considering S. 1324, we hope this committee and others in Con-
gress will be extremely cautious in curtailing access to historical sources
in such a decisive manner.
Thank you.
Senator DURENBERGER. Thank you, Dr. Nelson.
I appreciated the scope of the testimony. I would say that at least
one or more of your concerns about access have been our concerns, and
we have been satisfied that while they were appropriate as concerns,
they no longer are concerns to us, and part of the record of this hearing
will indicate that, because we have received some assurances from the
Agency in that regard.
But I found your testimony very helpful, and obviously, if you were
here at the beginning, when I had some time to make an opening state-
ment, I had deep concerns about the value to all of us of the profession
that you represent here today, and you can be confident and your col-
leagues can be confident that we will make sure that your testimony
and the questions that you raise are circulated among all the members
of this committee prior to a markup on this legislation.
Let me thank you again for your willingness to stick it out to the end.
Ms. NELSON. It would be extremely helpful for us if we could
perhaps see the information the CIA has given to the committee.
Senator DURENBERGER. We will see if that is possible, because it does
not help to have anybody in doubt about what it is we are doing and
why we are doing it and what you can expect when we move to mark
up this legislation.
Thank you very much, Doctor.
The hearing is adjourned.
[Whereupon, at 12:51 p.m., the committee was adjourned, to recon-
vene at the call of the Chair.]
[Letter to Senator Goldwater from Samuel R. Gammon, executive
director, American Historical Association follows:]
AMERICAN HISTORICAL ASSOCIATION,
Washington, D.C., June 24, 1983.
Hon. BARRY M. GOLDWATER,
Chair, Select Committee on Intelligence, Senate Russell Office Building,
Washington, D.C.
Mr. CHAIRMAN : I am writing to express the views of the American Historical
Association concerning S. 1329, upon which your committee will.hold hearings
next Wednesday. Even though we will be represented at the hearing by Dr. Anna
Nelson, appearing for us and the Organization of American Historians, we
should like to present our views more fully. You may recall from my testimony
before your committee a year and a half ago that I have served overseas as a
career Foreign Service Officer and worked closely with CIA stations in a number
of countries.
As historians we accept entirely the importance of protecting sensitive CIA
information on operations and methods as long as necessary both for the security
of our country and the security of the persons involved in sensitive intelligence
operations. However, we have two problems with S. 1324 as it now stands.
The first problem is that there is no terminal date for the protection of opera-
tional files ; material so labelled could be denied to history in perpetuity. You
will recall that in my 1981 testimony I mentioned the "sensitive" fact that
nearly a century and a half ago Daniel Webster for a time took a covert retainer
fee from the British Foreign Ministry ! While that was undoubtedly sensitive
at the time and for many years afterwards from the British intelligence point
of view, it certainly ceased to be so a generation after Webster's death. Accord-
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110
ingly we strongly urge that any legislation exempting CIA's operational files
from FOIA have a fifty-year limitation imposed. Consider only that had we had
an effective CIA in 1933, its operations in Italy and Germany against Hitler
and Mussolini would hardly merit protection beyond 1983.
Our other concern is even more fundamental. The existence of any FOIA-
proof "sanctuary" in a blanket exemption of files labelled operational will
'present a high degree of temptation to senior CIA bureaucrats. As a former
senior State Department bureaucrat I can well recall other subterfuges my
colleagues and I employed to shelter embarrassing or sensitive material from
the early Freedom of Information Act. For this reason we seriously doubt that
a blanket exemption of a part of CIA's records is the most effective way to pro-
tect sensitive CIA operational, methodological and personnel information on
national security grounds. We therefore believe that the classification system
for national security information, as established by Executive Orders, remains
the surest way to achieve that protection. Operational information is and should
be classified and denied any dissemination so long as it remains sensitive. We
do not perceive the need to design a whole-and duplicative-system of pro-
tection of a portion of CIA's undoubtedly sensitive national security information.
I respectfully request that this letter be made part of the record of the Com-
mittee's hearing of June 28, 1983 concerning S. 1324.
Sincerely,
SAMUEL R. GAMMON,
Ambassador (Retired), Executive Director.
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S. 1324-INTELLIGENCE INFORMATION ACT OF 1983-
MARKUP
TUESDAY, OCTOBER 4, 1983
U.S. SENATE,
SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The committee met, pursuant to notice, at 2:39 p.m., in room
SD-342, Dirksen Senate Office Building, Hon. Barry Goldwater
(chairman of the committee) presiding.
Present: Senators Goldwater. (presiding), Chafee, Lugar, Duren-
berger, Roth, Cohen, Huddleston, Biden, Leahy, and Bentsen.
Also present: Robert Simmons, staff director; Victoria Toensing,
majority counsel; Peter Sullivan, minority counsel; Dorthea Rober-
son, clerk of the committee; Michael Mattingly, Larry Kettlewell, Ed-
ward Levine, Glenda Hildreth, Lot Cooke, Sam Bouchard, John Elliff,
Keith Hall, Joseph Mayer, Eric Newsom, Charles Andreae, Stephen
Ward, Thomas Connolly, and James Dykstra, staff members.
PROCEEDINGS
The CHAIRMAN. The meeting will come to order.
Although we do not have a quorum present, I think. Senators
Huddleston, Durenberger, and Leahy have some comments to make.
We are here today to mark up S. 1324, a bill amending the National
Security Act of 1947. This legislation would relieve the CIA from
searching and reviewing certain operational files under the Freedom
of Information Act. This relief will enable the Agency to become more
efficient so that other FOIA requests may be answered speedily.
S. 1324 was introduced by me on May 18 of this year. Senator Thur-
mond, Judiciary Committee chairman, cosponsored. Since that time,
various Senators and interest groups have expressed their views on the
bill. On June 21 and 28 we held open hearings on this legislation. The
Central Intelligence Agency, American Bar Association, American
Civil Liberties Union, Association of Former Intelligence Officers,
newspaper publishers, historians, and journalists were all here to pro-
vide comment. And we listened. And then we went back and discussed
some more how we could address all these interests. And I think we
did a pretty good job, even if I do say so myself.
I particularly want to thank Senators Durenberger, Leahy, and
Huddleston for participating in these discussions, which were very
successful because everyone went away with most of what they needed.
Reaching agreement on this bill is a good example of how our demo-
cratic process should work. Everyone gave a little and in the long run
got a lot more in ruin.
(111)
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The CIA is getting relief from the almost impossible burden the
FOIA has placed on it, burdens which I do not think Congress really
contemplated when it passed the 1974 amendments.
Presently, FOIA mandates that if someone requests all the informa-
tion on a cerain subject, all the files have to be located. In an intelli-
gence agency, most of the information is classified. But that does not
end the agency's job. An experienced person must go through stacks
and stacks of these papers-sometimes they are many feet tall-to
justify why almost every single sentence should not be released. If this
is not done well, a court could order the information released.
However, very little information, if any, is ever released from opera-
tional files when the requestor seeks information concerning the sources
and methods used to collect intelligence. Even then, the information
released is usually fragmented. .
Also, there is always the risk that there will be a mistaken disclosure
or that some court may order the release. of information which could
reveal a source's identity or a liaison relationship. That is why only
these most sensitive operational files would be exempt from search and
review under the provisions of the bill.
The FOIA requestors will get something in return. They are going
to get better service. I have talked with the CIA and they have agreed
not to reduce the budgetary and personnel allocation for FOIA proc-
essing for 2 years immediately following passage of this bill. _ This
means that to the extent that resources are freed up as a result of S.
1324, the Agency will utilize those resources for FOIA processing.
Senator Inouye could not be with us today, but he does have a pre-
pared statement that he would like to have inserted in the record at
this point, and without objection, we will do so.
[The prepared statement of Senator Inouye follows:]
PREPARED STATEMENT OF VIEWS BY SENATOR DANIEL K. INOTJYE
S. 1324, as amended by the Intelligence Committee prior to its approval, is de-
signed to provide limited relief to the Central Intelligence Agency from the ad-
ministrative burdens and security risks associated with processing public re-
quests for documents under the Freedom of Information Act while preserving
potential public access to such records as are legitimately subjects of public con-
cern. I made a statement during the public hearings on this bill, accompanied by
a written submission, in which I commended the intent of the bill while enumerat-
ing several concerns with its specific provisions. These concerns, which became
more focused as work proceeded on this bill, were primarily the following : the
nature of agency decisions to designate certain files as operational and exempt
from search and review in response to requests under the FOIA ; judicial re-
view of such actions under the provisions of the bill, specifically the designation
and maintenance of files as exempt operational files; continued access to files
containing evidence of abuses or improprieties by intelligence personnel acting in
their official capacity ; the potential for release of historically significant intel-
ligence information, after a reasonable period time ; Identification and review of
intelligence reports located in operational files ; and the circumstances under
which covert action could no longer be denied by the U.S. government, such that
relevant files would have to be reviewed. I would like to address my understand-
ing of how each of these issues has been resolved as a result of the Committee's
action approving this bill.
Two changes.have been made to S. 1324 as introduced which delineate better
the nature and location of files which can be designated as operational and the
procedure by which such decisions may be made. First, section 701 of the amend-
ments has been reorganized to make it clear that it is only certain types of files
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located in specific offices of the CIA which are subject to designation under the
Act. These are the files of the Directorate of Science and Technology which
document scientific and technical means for collecting intelligence ; files of the
Directorate of Operations which document intelligence operations or relations
with foreign ' governments ; and files of the Office of Security which document
background investigations conducted to determine the suitability of potential
human sources.
Second, the new subsection 701(d) (1) has been added which requires the
Director of Central Intelligence (DCI) to implement his authority to designate
files as operational by promulgating regulations. These regulations must require
the officials responsible in the first instance for designation and maintenance
of operational files to : specifically identify the categories of files in their offices
which are recommended for designation; explain the basis of these reconnnenda-
tions ; and set forth procedures consistent with the statutory criteria of subsec-
tion 701(a), cited above, to govern the inclusion of specific documents in files
recommended for designation. The DCI must approve these submissions in
writing.
These provisions are a significant improvement to the terms of this subsection,
relating to the designation of operational files. Not only is the scope of the par-
ticular files that may be designated more clearly delineated, but specific actions
must be taken concerning the organization and maintenance of designated files ;
these actions, accompanied by written determinations, will greatly focus the
designation process and provide an administrative record to facilitate judicial
review. The Chairman is to be commended in securing the acceptance of the
CIA to these changes, suggested by the civil liberties community and recom-
mended by several members of the Intelligence Committee.
II. JUDICIAL REVIEW
New subsection 701(e) (1) provides a specialized process of judicial review
for public claims that agency search and review of records in response to requests
for information under the FOIA was duly limited by improper designation of
files as operational or improper placing of non-operational documents in opera-
tional files. Judicial review of the designation and maintenance of operational
files, exempt from search and review under the FOIA, is independent of the
standards for judicial review developed to govern the interpretation of other
actions related to the FOIA. This process is intended to minimize the necessity
for the CIA to provide specific details on the contents of its filing systems to
requestors or to judges reviewing the adequacy of the Agency's search and re-
view of files in response to FOIA requests.
For the most part, judicial decisions under this subsection will be made solely
on the basis of sworn affidavits submitted by the parties to the litigation. Ordi-
narily, the court's review would be limited to assessing, on the basis of the
agency's affidavits, that its regulations under subsection 701(d) (1) satisfy the
statutory criteria for designation established in subsection 701(a). However,
when the requestor establishes on the basis of the affidavits grounds to believe
that a specific file containing relevant, documents was improperly designated or
relevant documents were improperly placed in a designated file, then the court
may proceed to review these questions as well.
III. INTELLIGENCE ABUSES OR IMPROPRIETIES
There has been concern that the provisions of this.bill might exempt from
search and review in response to requests under the FOIA documents relating to
abuses or improprieties committed by the intelligence personnel acting in their
official capacity. An additional proviso has been added at the end of subsection
701(a) to provide that information reviewed or relied upon in official investiga-
tions on such events will be searched in response to requests under FOIA, regard-
less of whether the particular documents in question are located only in opera-
tional files. For the most part, records relevant to abuses or improprieties that
have been seriously alleged will have been examined by official investigatory
bodies, both internal to the Agency and independent. When, however, such records
have been withheld from official investigation, or overlooked through inadvert-
ence by investigators, they would be considered improperly filed if they were
found to be located only in designated operational files. As such, failure to search
for them and review them for potential release in response to a FOIA request
would be subject to judicial review under subsection 701(e) (1).
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IV. HISTORICALLY SIGNIFICANT INTELLIGENCE INFORMATION
If operational files could be designated as exempt from search and review under
the FOIA for an unlimited period of time, there would be a danger that histori-
cally significant intelligence information would never become available to histori-
cal researchers and that the writing of history would be distorted as a result.
Although actual operations are usually the most sensitive aspect of intelligence
and may remain sensitive for a long period of time, nevertheless these operations
themselves are an important part of the chronicle of our times. Intelligence oper-
ations have been an important part of the relationship between the superpowers
in the postwar world, and are therefore important to understanding contemporary
as well as past international relations. Details released concerning certain intelli-
gence collection operations-such as the U-2 affair and the Berlin Tunnel opera-
tion-have already made a great contribution to our historical understanding of
the development of United States-Soviet relations.
Changes have been made in S. 1324 which I hope will greatly expand the access
of historical researchers to historically significant information on intelligence
operations. Under subsection 701(d) (2) of the amendments, the DCI must
formulate regulations providing procedures and criteria for the review of
exempt operational file designations every ten years. The criteria issued by the
DCI must include consideration of the historical value or other public interest in
the subject matter of the particular files. Not only must the DCI consider these
interests, but he must also include in his consideration the potential for actually
declassifying and releasing a significant part of the information contained in
operational files.
The DCI should be able to provide details concerning his decisions to retain or
terminate the designation of particular files as operational. This can best be done
through the establishment of a definite unit to conduct these reviews, and I am
informed that the DCI has agreed separately to establish such an office. I hope
that the establishment of this office and these regulations will greatly facilitate
the review of operational information for release to historical researchers.
V. INTELLIGENCE REPORTS LOCATED IN OPERATIONAL FILES
Sometimes, because of the extreme sensitivity of certain intelligence reports
that inherently refer to or reveal critical sources or methods of intelligence
gathering, raw or finished intelligence products continue to be stored only in
operational files of the Operations or Science and Technology Directorate or
Security Office after being circulated to policymakers. The Committee has been
assured that whenever such documents are circulated as intelligence products
outside their operational components a record is made of them in the receiving
unit prior to their being returned to operational files. We have also been in-
formed that, in the case of both raw and finished intelligence products, adequate
information concerning such documents would exist in non-designated files to
permit them to be identified as a result of a record search in response to a FOIA
request. After being located through this search, such documents must actually
be reviewed for release pursuant to the FOIA, regardless of their location only
in designated operational files.
VI. THE EXISTENCE OF COVERT ACTIONS
Part of the final proviso in subsection 701(a) provides that designation of
files as operational shall not shield them from search and review in response to
requests under FOIA if the request concerns "any special activity the existence
of which is not exempt from disclosure under the provisions of the [FOIA]".
There have-been questions concerning the circumstances in which the existence
of a covert action could no longer be considered classified and hence not subject
to release under the FOIA. Admission of the existence of such an action by the
President or an authorized Executive Branch official would of course be suf-
ficient to prevent its complete denial. The Senate has also exercised its power to
declassify national security information, including such actions, under Senate
Resolution No. 400 (1976), which established the Select Committee on Intelli-
gence and provided definite procedures for the treatment of classified informa-
tion by members and their staffs. Furthermore, since covert actions are usually
considered to be those affirmative measures by the United States government
taken with respect to foreign powers the existence of which can plausibly be de-
nied by the United States government, there would undoubtedly be instances in
which the existence of the operation became so well known that the Administra-
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tion could no longer completely deny it. In such cases, the FOIA would certainly
demand search and review of relevant files for release of information concern-
ing the activity. In the context of an appeal under the FOIA, the courts can be
expected to address this question as a factual one in the absence of an explicit
admission by an authorized official of the Executive Branch.
The CHAIRMAN. Now I indicated that Senators Leahy, Durenberger,
and Huddleston had some remarks to, make, and we will start, I guess
with you, if you want to lead off.
Senator HUDDLESTON. Mr. Chairman,' thank you, very much. And I
will.put my remarks in the main in the record. Most of the folks who
are here have participated in this process and know pretty well what I
would have to say.
But I do want to commend you for initiating this legislation in the
first place, and express my appreciation to the committee staff and to
individual staff members of the Senators and to the staff of the CIA
and others who have been concerned about the legislation and who
have worked to bring about an agreed position.
As a result of the changes, in the bill and the commitments that have
been made to the committee by the CIA, I am satisfied that S. 1324
will serve both the CIA's operational interests and the public's right
to have as much information as possible about their government.
During the weeks ahead interested citizens will have an opportunity
to examine the new bill language, and the committee's report will help
explain the legislative intent. I believe that the bill will withstand this
scrutiny and be recognized widely as a unique opportunity to resolve
the problems associated with the CIA and the Freedom of Informa-
tion Act.
I would ask that my total statement, Mr. Chairman, be placed into
the record at this point.
The CHAIRMAN. That will be done. Thank you.
[The prepared statement of Senator Huddleston follows:]
PREPARED STATEMENT OF SENATOR WALTER D. HUDDLESTON
o Today, the Senate Select Committee on Intelligence is considering S. 1324, the
Intelligence Information Act of 1983, with amendments designed to ensure that
the bill strikes the right balance between the public's need for information about
their government and the CIA's desire for relief from burdens imposed by the
current requirements to search and review sensitive operational files under the
Freedom of Information Act. I support the amended bill as a practical way to
achieve both of these objectives.
There are four significant changes from the bill as introduced. First, the stand-
ards for designation of operational files by the Director are spelled out in order
to indicate exactly which file systems in the CIA will be exempted from search
and review. This amendment results from a careful examination by the Select
Committee of CIA record-keeping practices. Our objective is to ensure that the
bill applies only to the most sensitive operational files, and not to the files that
are used to store the intelligence reports used by analysts and policymakers.
The amendment also makes clear that files of other CIA components, such as the
Office of the Director, cannot be exempted from search and review even though
they contain the operational documents which receive the. attention of the Direc-
tor or Deputy Director. This ensures continued access to all significant policy
materials.
The second change in the bill provides that the designation of any operational
file shall not prevent the search and review of such file for information reviewed
and relied upon in an official investigation for impropriety or illegality in the
conduct of an intelligence activity. This applies to any matter that has been
investigated by the House or Senate Intelligence Committee, the Intelligence
Oversight Board, the CIA General Counsel, Inspector General, or Director. The
Committee determined that the nondesignated files of these investigating bodies
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sometimes do not contain all the materials that were directly relevant to the
subject of the investigation. It is necessary, therefore, to amend the bill in order
to ensure full access to the materials in designated operational files that were
relevant to the investigation, but were not duplicated in the files of the investi-
gating body.
On this issue the Committee will also state in its report that, in situations
where a document was not reviewed in connection with an investigation because
it was withheld or overlooked through inadvertence, the document will be con-
sidered an improperly placed document and thus accessible under the judicial
review procedures. This closes a potential loophole in the language of the
amended bill that refers to information "reviewed and relied upon" by
investigators.
The third amendment to the bill adds a new subsection requiring the Director
to promulgate regulations for designation of operational files and for review of
designation at least once every ten years. The regulations must require the
appropriate Deputy Director or Office Head to specifically identify categories
of files for designation, explain the basis for their recommendation, and set
forth procedures based on the statutory criteria to govern the inclusion of docu-
ments in designated files. In addition, the regulations must provide procedures
and criteria for review of each designation not less than once every ten years
to determine whether the designation may be removed from any file. These
criteria must include consideration of the historical value or other public
interest in the subject of the file and the potential for declassifying a signifi-
cant part of its contents.
This amendment is especially significant in light of the issues raised by the
President's Executive Order on classification, which eliminated the requirement
in President Carter's order that the public interest in disclosure be taken into
account in making declassification decisions. Senator Durenberger has introduced
legislation, which I have cosponsored, to make the public interest standard part
of the provisions on classified information in the Freedom of Information Act.
Incorporation of that standard in the criteria for removal of designation from
CIA operational files under this -bill is an important step in the right direction.
Finally, and perhaps most important, the bill is amended to establish clear
procedures for judicial review in cases of alleged improper file designation or
alleged improper placement of records solely in designated files. At the first public
hearing on the bill, I asked CIA officials whether there would be judicial review
of file designations; and they replied that there would be none whatsoever. This
answer raised serious problems, because many citizens believe the basic principle
of the Freedom of Information Act is that the courts will have an opportunity
to review the bureaucratic decisions that keep information secret. I am very
pleased, therefore, that agreement has been reached on an amendment to the bill
that guarantees an opportunity for persons who have evidence of improper file
designation or improper placement of records solely in designated files to have
the courts look into the matter and determine whether CIA should conduct the
requested search and review for information in designated files.
In addition to the changes in the bill, the Committee has examined carefully
the likely practical impact of the bill. At the first hearing I said there were
several questions that needed to be checked out. Was it true that the bill would
not reduce the actual amount of information that comes out under the Freedom
of Information Act today? Would reporters and scholars still have access to as
much information as possible consistent with national security about the CIA
Intelligence product that goes to national policymakers? What would happen to
the enormous backlog of CIA requests? How did CIA plan to improve its process-
ing of requests for information that can be declassified?
To answer these questions, the Committee has submitted detailed written ques-
tions to the CIA and has obtained firm commitments on crucial points. For ex-
ample, I asked the CIA to review a list of selected CIA documents which have
been released to the public and indicate which, of them would or would not remain
subject to search and review under the bill. This list covered a wide range of
significant documents on CIA policies and controversial operations. In response
to this request, the CIA prepared an item-by-item analysis of the impact of the
bill, which will be part of the record of the Committee's consideration. The CIA's
analysis explains why virtually all of the documents are the type that would
continue to be accessible to search and review should they be requested under
FOIA after this bill is enacted.
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The CIA has also agreed to submit to the Committee a detailed plan for elimin-
ating the present backlog of FOIA requests as part of a specific program of
administrative measures the CIA will take to improve processing of FOIA re-
quests after enactment of the bill. The agency will not reduce its budgetary and
personnel allocation for FOIA processing during the period of two years immedi-
ately after the bill is passed. And the CIA agrees that resources freed by elim-
ination of the backlog will be reallocated to augment resources for search and
review of nondesignated files. For its part, the Select Committee will regularly
and closely scrutinize CIA's actions to insure that concrete results are achieved
and that all FOIA requests to the CIA are responded to in a timely manner and
treated with the courtesy required by the spirit, as well as the letter, of the FOIA.
As a result of the changes in the bill and the commitments made to the Com-
mittee by the CIA, I am satisfied that S. 1324 will serve both the CIA's opera-
tional interests and the public's right to have as much information as possible
about their government. During the weeks ahead interested citizens will have an
opportunity to examine the new bill language, and the Committee's report will
help explain the legislative intent. I believe the bill will withstand this scrutiny
and be recognized widely as a unique opportunity to resolve the problems associ-
ated with the CIA and the Freedom of Information Act.
The CHAIRMAN. Senator Durenberger?
Senator DURENBERGER. Thank you, Mr. Chairman.
I, too, would like my statement in full in the record, and I will
summarize it by saying I am happy to join my colleagues on the com-
mittee today in supporting the Intelligence Information Act of 1983.
The bill will both improve the security of sensitive CIA files and re-
lieve the CIA of a needless administrative burden, while it still main-
tains freedom of information access to virtually all the material that
is currently released under FOIA.
I am especially pleased, of course, by what we have been able to
achieve for historians, like Bill Casey in his other life. Yesterday and
today, the Director and I exchanged letters in which he agreed to
establish a new program of reviewing nondesignated and de-desig-
nated CIA files for declassification: In turn, I agreed to take it upon
myself to push for approval of the necessary funds for this important
undertaking. I hope the whole committee will join with me in securing
those funds. Bill Casey and I are both hopeful that this new program
will make a major contribution to historical research.
The Intelligence Committee has also taken several actions regarding
the bill itself that will safeguard the interests of historians and of the
public at large. We are limiting the extent to which information may
be exempted from FOIA that might otherwise have been released to
the public. We have insured judicial review to guard against improper
use of this exemption. We have obtained concrete pledges of better
FOIA service by the CIA. And the CIA has agreed to periodic re-
views of its files exemptions, with an eye to ending most exemptions
by the time an operation has been over for 40 years. So I think it is a
good bargain.
Why do I emphasize historians so much? I do love history, but I also
deeply believe that historical research and writing influence and benefit
all of us. When we protect the historian's access to the full story, we
are really protecting our Nation's understanding of itself. And we are
insuring that we and the generations to follow will better understand
how to deal with the challenge of government at a given time.
All of this concord would not have come about without the fine work
of many people--especially you, Mr. Chairman, who gave of your
time and encouragement to help us work out this agreement. It was no
accident, by the way, that Senator Goldwater asked General Larkin
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about the value of historical research on the role of intelligence. I think
our chairman knows well the value of history, and certainly all of us
appreciate his support on these issues.
I would add that three colleagues, in particular, on the other side of
the aisle played very important roles: Senator Leahy, Senator Hud-
dleston, and Senator Inouye. Each of these gentlemen helped keep the
committee's efforts on track and helped convince the CIA to accept the
package of amendments that we are approving today.
And finally on the CIA's side, we have had a singularly effective and
enjoyable person to work with in Ernie Mayerfeld, the Deputy Di-
rector of CIA's Office of Legislative Liaison. He is tough, but without
him to listen, to explain, and to come up with solutions, neither the CIA
nor we could have achieved the fine balancing of interests that this
bill now reflects.
Mr. Chairman, I will submit my full statement for the record, along
with my letter of October 3 to Director Casey, and his reply of October
4.
The CHAIRMAN. Without objection, they will be placed in the record
at this point.
[The prepared statement of Senator Durenberger, along with copies
of the aforementioned letters, follow:]
PREPARED STATEMENT OF SENATOR DAVE DURENBERGER
I am happy to join my Intelligence Committee colleagues today in supporting
S. 1324, the intelligence Information Act of 1983. This bill is the product of truly
impressive cooperation between the Central Intelligence Agency and both this
Committee and outside groups concerned with the flow. of information to the
public. Thanks to that cooperation, we are able to report out a bill that will both
improve the security of sensitive CIA files and relieve the CIA of a needless ad-
ministrative burden, while still maintaining Freedom of Information access to
virtually all the material that is currently released under FOIA.
I am especially pleased, of course, by what we have been able to do to help
historians gain access to CIA materials that can safely be released. Yesterday
and today, CIA Director Bill Casey and I exchanged letters on the subject of a
voluntary CIA program of reviewing non-designated and de-designated files for
declassification. The Director, who is a historian himself, enthusiastically agreed
to establish such a program, and I agreed to push for Committee approval of the
funds for this important undertaking. Both Bill Casey and I are confident that
the CIA, by concentrating its effort on those files that are of historical value or
other public interest and that have significant releasable information, will be
able to increase substantially the flow of. historical material to the public.
The Intelligence Committee has also taken several actions regarding the bill
itself that will safeguard the interests of historians and of the public at large.
Our amendment on standards for designation of operational files is a good exam-
ple. This amendment makes clear that, in the Office of Security and the Directorate
of Science and Technology, only particular files will be eligible for designation
as operational.
The amendment on designation standards and our report on this bill also make
clear what sort of files will not be considered operational. For example, not only
finished intelligence products, but also raw intelligence cables and memoranda
that the Directorate of Operations sends to CIA's analysts will not be given opera-
tional status. Policy memoranda sent outside the Operations Directorate will not
be designated. Neither will the files of the Director and Deputy Director, the
Comptroller, the Finance Office, the General Counsel, and the other agency-wide
management offices that make CIA policy. So the major decisions on CIA opera-
tions, as well as the budgetary story of those operations, will remain open to
FOIA search and review.
The Intelligence Committee has gone to some length to make sure that there will
be no loopholes through which intelligence or policy memoranda might slip into
designated status. We have reviewed the CIA's filing systems and secured CIA
statements for the record to pin down the fact that even if a memo that had been
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disseminated to the Intelligence Directorate or shown to the CIA Director was
then returned to the Operations Directorate for safekeeping, it will still be con-
sidered non-designated and will in practice be accessible for FOIA search and
review. We also have made clear that documents sent outside the CIA, like memo-
randa to the National Security Council, cannot be designated under this bill. And
in case there should be an instance of improper designation of a file, or somebody
should attempt to keep non-designated material out of FOIA by storing it solely
in designated files, the Intelligence Committee has adopted an amendment to make
clear that there will be judicial review and court-ordered remedies available
whenever a complainant can produce admissible evidence of such improper filing.
One difficult issue that the Intelligence Committee faced was how to treat
the files on activities that have been investigated for possible illegal or improper
behavior. The amendment and report language adopted by the Committee make
clear that FOIA search and review can extend beyond the files of the investi-
gating unit (such as the General Counsel's office) to include materials that were
"reviewed and relied upon" by that unit and also files that were withheld or
overlooked, but that still contain information directly relevant to the impropriety
or illegality. We think of this as being a victory for journalists and political
authors, but it is also a victory for historians. For the history of U.S. intelligence
must inevitably include the blunders and illegalities along with the successes, and
also the nature and impact of the investigations. By keeping these files open to
FOIA search and review, we are helping to make sure that historical perspective
will not be distorted by keeping embarrassments out of the public eye.
Historians made a strong case for a time limit on the designation of opera-
tional files. They correctly argued that such files lose their sensitivity over time
and that historians need eventually to have access to the full range of informa-
tion. I think all of us are sympathetic to that argument ; we, too, spend much of
our time trying to get the full story on things. But the CIA also had a case when
they said that some files might remain sensitive for a much longer time than one
would predict. Some agents live to be very old ; their enemies sometimes live
equally long, or keep files on the past, or exact revenge from later generations.
Most governments would let bygones of a generation ago be bygones, but maybe
not all would. So the committee looked for something other than a rigid time
limit.
The amendment adopted by the Committee is a compromise. It requires the
CIA to review its designation of files at least once each ten years. It also specifies
the basic criteria for removal of designation : "the historical value or other public
interest in the subject matter ;" and "the potential for declassifying a significant
part of the information." Our report language emphasizes that the CIA should
consult with historians, and listen to them, regarding the historical value of par-
ticular topics. The amendment also indicates that portions of files-such as the
story of a given operation, even though it may be part of a larger file on opera-
tions over the years-should be removed from designation if they meet the cri-
teria for removal. The CIA will make these decisions, and I know that there
will be concern over their willingness to consider the public interest in opening
files to FOIA search and review. But they are willing to agree to our bill and
report language, and their willingness to institute a voluntary program of de-
classification review gives me increased confidence that the CIA will also review
its operational files conscientiously.
The CIA has also agreed to certain commitments regarding the way it handles
Freedom of Information requests. They agree not to reduce their FOIA man-
power in the next two years, but instead to devote that manpower to reducing
their backlog of requests. They agree that if the burden is eased on the Opera-
tions Directorate but remains high for the Intelligence Directorate, they will
adjust their manpower to tackle the problem. They will also continue to give
speedy service to those whose FOIA requests do not require extensive search
and coordination. For many FOIA requesters, including historians interested in
substantive intelligence products, this should mean faster and more courteous
service.
For the historian, then, I think that this bill is a good bargain. The Intelligence
Committee has done a great deal to limit the extent to which information may
be exempted from FOIA that might otherwise have been released to the public.
We have insured judicial review to guard against improper use of this exemption.
We have obtained concrete pledges of better FOIA service by the CIA. And we
have gotten the CIA to commit itself both to periodic reviews of its file exemp-
tions and to a voluntary program of declassification for significant files that can
be released to the public.
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Why do I emphasize historians so much? I do love history, but I also deeply
believe that historical research and writing influences and benefits us all. History
is one of our few shortcuts to wisdom. As Cicero said, "Not to know the events
which happened before one was born, that is to remain always a boy." And
history is the basis of myth in modern life. Nearly three hundred years ago
Andrew Fletcher said, "If a man were permitted to make all the ballads, he need
not care who should make the laws of a nation." We have gone from ballads to
headlines and histories, but the interpreters of our past still affect virtually the
way we will react to events of the present and future.
So when we protect the historian's access to the full story, we are really pro-
tecting our nation's understanding of itself. And we are ensuring that we and
the generations to follow will better understand how to deal with the challenge
of government.
U.S. SENATE,
SELECT COMMITTEE ON INTELLIGENCE,
Hon. WILLIAM J. CASEY, Wa8hington, D.C., October 3, 1983.
Director of Central Intelligence,
Central Intelligence Agency,
Wa8hington, D.C.
DEAR BILL: Last April, our Chairman, Barry Goldwater, introduced a bill that
would relieve the Central Intelligence Agency from the burden of searching, some
of its files in response to Freedom of Information Act requests. While several
of us had concerns regarding aspects of this bill, we all agreed with you that it
was foolish to require the CIA to search its most sensitive files for documents, that
would almost never be declassified and released.
Five months of work are now nearing culmination in a bill that we all will
be able to support wholeheartedly. You and we have crafted solutions to such
difficult problems as the nature of judicial review under this bill, the extent to
which the files on activities that have been the subject of investigations will
remain open to search and review under FOIA,.and how intelligence memoranda
or policy memoranda that are circulated outside of designated files but then
returned to those files for safekeeping will remain accessible for FOIA search
and review. We have also agreed that the CIA will review its designations at
least once every ten years to see whether some files-or portion of files-should
be removed from designated status.
I think that now is an excellent time to make parallel progress on an issue that
our work on S. 1324 has highlighted. This is the need to make more declassified
materials available to historians. We both know how important history is. I am
an avid reader of history and you are a writer of it. We both have been shaped
in part by history that we have read over the years. As historians write the
definitive works on the post-World War II era, it is terribly important that their
studies be based on as full a record as possible, consistent with the need to pro-
tect our national security.
You have recognized this in putting forth a bill that leaves unchanged current
FOIA access to intelligence memoranda, policy documents, and files on those
covert action operations the existence of which is no longer properly classified.
The importance of an accurate historical record is. also recognized in your criteria
for removing files from designation, which are to include "historical value or
other public interest in the subject matter" and "the potential for declassifying
a significant part of the information."
I urge you to take the next, vitally important step : to establish procedures for
reviewing and declassifying some of the material in your non-designated or de-
designated files. Your declassification review program need not review the mass of
documents that are either of no interest to historians or still too sensitive to he
released. Rather, you could reasonably base your selection of material for review
on the same criteria that you have set forth for the review of file designations.
The important thing is to make the declassification of useful historical informa-
tion a cooperative endeavor, rather than a test of wills fought out in FOIA re-
quests and courtrooms.
A declassification review,program would be a burden for the CIA, but it would
be a manageable burden and one well worth assuming. The CIA would retain
control over the size of this effort, and you could avoid the sort of crises and
bottlenecks that bedevil areas like FOIA, in which the pace of work may be
dictated by - the level of outside requests and the vagaries of litigation. You
already have a CIA Historian, so it might be reasonable to give him a major role
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in declassification review. I would be happy to lead the effort to provide you
budget support for a dozen positions, say, to be devoted to this enterprise.
Establishment of a declassification review program would be a fitting comple-
ment to the fine Intelligence Information Act that I am sure we will pass. It
would demonstrate your commitment to openness in the things that matter, while
continuing to safeguard that which must remain secret. And it would make a
lasting contribution to public understanding of the role of intelligence in a com-
plex and divided world.
Sincerely, DAVE DURENBERGER.
At the moment, I do not know whether our small historical staff would be in a
position to manage a selective declassification review program. But no matter
where such a program would be placed organizationally within the Agency, I
understand that what you are suggesting is a program provided with adequate
resources. Several weeks ago, on my own initiative, I had requested the Historian
of the CIA to explore a program that would result in the release of usable histor-
ical materials from the World War II period. I look forward to working with
additional resources having, as you suggest, the mission of declassifying and re-
leasing historical materials that no longer require protection.
Please allow me again to express my appreciation for your support of S. 1324.
With the enactment of this important legislation and the achievement of the
necessary budget support, I believe this Agency would be more than willing to
undertake a new selective declassification review program. With your leadership
and support, we can forge a workable means of informing the public while still
One certain consequence of this selectivity would be a concentration of our
efforts on the review of older, as opposed to more recent, material. Such material
which documents the early years of CIA could well result in the release of in-
formation that explains the role of intelligence in the making of foreign policy.
As a general rule, we are likely to limit the declassification review program to
files at least 20 or 30 years old. However, these older files would certainly contain
information which continues to be relevant to today's world. I am hopeful that
whatever material we can release, consistent with the need to protect sources
and foreign relations, will make a major contribution to historical research and
The term "selective" is very important. There is no point in reviewing files
that we basically know will contain little releasable information. And it makes
no sense to review-or even to release-material that has become releasable only
because it is trivial. Our professionals have a pretty good sense of what is likely
to prove releasable ; and we would be happy to work with our Historian, other
agency historical offices, the Archivist of the United States, and others to deter-
mine what topics are of the greatest interest and importance. Historians would
have to trust us, however, to make these professional judgments in good faith. A
declassification review program could function only if we maintained control
over the workload and concentrated our limited resources on the areas where they
Your views regarding the need for an accurate historical record are ones that
I share. If Congress is willing to provide the resources, I am prepared to institute
a new program of selective declassification review of those materials that we
believe would be of greatest historical interest and most likely to result in de-
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., October 4, 1983.
DEAR SEINATGR DURENBERGER : I received your letter yesterday with its kind
words about our efforts on.the Intelligence Information Act. We have worked
diligently through the spring and summer to reach agreement with you and your
colleagues on this bill. We have done this because we are convinced, as you are,
that the bill will relieve us of a needless burden without harming the interests
of the press, authors, or the public at large. I am gratified to hear you say that
as a result of our efforts you will be able to support this bill. I certainly believe
Hon. DAVE DURENBERGER,
U.S. Senate,
Washington, D.C.
protecting our nation's secrets.
Sincerely,
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-.122
The CHAIRMAN.. Well, thank you, very much. And I want to thank
all three of you for the great work that you have done and the compro-
mises that you have been willing to make. I think it is a much better bill
because of it.
Pat, I have you down next.
Senator LEAHY. Mr. Chairman, I will put my whole statement in the
record, but I would like to make a couple of points now. When the Intel-
ligence Information Act was first introduced, I stated in the hearings
that my primary concern was that it not undercut the public's access to
information used in setting U.S. foreign policy under the Freedom of
Information Act.
I was then and continue to be sensitive to the CIA's concerns about
maintaining compartmentation and protecting identities and sources.
But I don't believe that FOIA causes the release of sensitive informa-
tion. And I am firmly -convinced that ultimately it is in the Agency's
best interests not to receive a total exemption from the FOIA. If they
had a total exemption, I think that it would hurt them in the long run
with the American public.
FOIA is vital in maintaining public confidence that there will be no
reappearance of past abuses or problems. Nothing has come before me
in our intensive scrutiny of this bill, both in public and closed sessions,
that has changed my view in this respect.
Mr. Chairman, you and your staff have been particularly helpful in
working with me to answer some of my concerns, as has Dave Duren-
berger and Dee Huddleston, Dan Inouye, their staffs, and others on the
committee, as well as a number of outside groups that have come and
worked with us, and the CIA themselves. I told some of the people from
the CIA and some of the outside groups, I thought they should have
their mail forwarded to my office, they were in it so often. .
Among those concerns was one I expressed when John McMahon
testified to the effect that the CIA did not believe the bill as originally
introduced would permit judicial review of the designations of files.
I commend the CIA for moving from that initial position to one which
is both more realistic and more in line with maintenance of public con-
fidence. After lengthy deliberation the Agency has agreed to an amend-
ment to S. 1324 to provide for judicial review of an allegation that the
CIA has improperly designated files as operational, and therefore ex-
empt from FOIA's search and review, or that the CIA has improperly
placed records solely in designated files.
There are a number of less critical but still not insignificant matters
to be spelled out and agreed in. report language. I understand that this
is well in train. The draft report should soon be available for us to re-
view. As with any. piece of legislation, interpretative report language
can be critical in establishing-the committee's intent. Of course, my fur-
ther support for the bill is conditioned on satisfactory completion of
the report, but I assume that that will happen.
And finally there is the matter of comments and ideas from inter-
ested public groups. This has been a rather fast process for such an
important piece of legislation, but I understand it will not be taken
up on the floor prior to our recess. While I and others have sought
to consult informally with interested groups where possible, many of
them have not had sufficient time to study the bill as amended and
to express their views as organizations. I would hope that they would
take this time prior to it coming on the floor to do that. There should
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123
be ample time for them to examine this amended bill as well as the
report language prior to action on the floor.
I remain ready to hear the considered views and comments of such
groups, and naturally reserve the right to take such views and com-
ments into account prior to a final vote on this bill.
As I said, I have a lengthy statement to be put in the record, Mr.
Chairman, but let me repeat that I am indeed pleased at the progress
made in strengthening this bill. I commend the Agency for its co-
operative attitude, certainly your own cooperative attitude as chair-
man of this committee, in making sure that everybody around this
table is heard. This is not only in keeping with the Goldwater tradi-
tion, but it has also made for a much better bill. I don't believe there
is any member, Republican or Democrat, who could quarrel with the
amount of time you have given us. You bent over backwards to make
that possible.
Finally, I understand the Director of the CIA, Mr. Casey, is send-
ing a letter to the effect that he agrees with the changes that we have
proposed. I think that once that comes it should also be part of the
record.
It is going to give me a lot of satisfaction to be able to vote for
reporting the bill as amended with a favorable recommendation to
the Senate.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy follows:]
PREPARED STATEMENT BY SENATOR PATRICK J. LEAHY
When S. 1324, the Intelligence Information Act of 1983 was first introduced, I
stated for the record my primary concern that it.not undercut the public's access
through the Freedom of Information. Act' to information used in setting United
States foreign policy..
The purpose of S. 1324 is to exempt the Central Intelligence Agency's opera-
tional files in the Directorate of Operations,. the Directorate of Science and Tech-
nology, and the Office of Security, from search and review in response to FOIA
requests. All other Agency files would remain accessible through the FOIA, as
at present.
According to the CIA, operational files contain the most sensitive information
on sources and methods, and the compartmentation needed to protect this infor-
mation is broken down in the search and review process even though the Agency
invariably refuses to release such information under the national security pro-
visions of FOIA. I was-and continue to be-sensitive to the CIA's concerns
about maintaining compartmentation and protecting the identities of sources,
but I do not believe that FOIA causes the release of sensitive information.
I am firmly convinced that ultimately it is in the Agency's best interests not
to receive a total exemption from the FOIA. The FOIA is vital in maintaining
public confidence that there will be no reappearance of past abuses and prob-
lems. Nothing which has come before me in the Committee's intensive scrutiny
of S. 1324 has changed my views in this respect.
With this fundamental premise in mind, I have worked closely with other
Committee members and staff, CIA representatives, and interested public groups
to find a proper balance under this bill which would :
Maintain the maximum feasible public access to CIA files of intelligence
reports, and policy documents, consistent with the national security ; and
Relieve the CIA of an unproductive burden of searching and reviewing those
operational files from which it virtually never releases significant Information.
I am pleased that significant amendments have been accepted by the chairman
and the CIA, and that I can support reporting the Bill, as amended, to the floor.
Chairman Goldwater has been very cooperative In withholding Committee action
in order that I and others with particular concerns would have sufficient oppor-
tunity to see whether mutually acceptable solutions could be worked out in dis-
cussions with CIA representatives, and others. I want to thank In particular
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Eric Newsom, my designee on the Select Committee on Intelligence staff, and
John Podesta, from the Judiciary Committee staff, who were of special help in
working out a satisfactory arrangement on judicial review.
In the Committee hearings and in separate meetings with CIA officials, four
basic concerns have been identified. Most of the work of the last three months has
concentrated on them. These key issues are :
1. How to provide for adequate judicial review of Agency designations of
files as having operational functions and Agency placement of documents
in designated files, and therefore the basis for exempting them from search
and review under the FOIA.
2. How to ensure that adequate procedures exist for public access through
FOIA and, if necessary, the judicial process, to documents relevant to alleged
abuses and improprieties by the CIA.
3. How to devise mechanisms and arrangements so that public groups, such
as historians and other researchers, could continue to have access to docu-
ments in designated files which could be significant in study of U.S. policies.
4. What specific commitments the CIA could and should make to improve
responsiveness to FOIA requests concerning search and review of files not
exempted by this Bill.
JUDICIAL REVIEW
Provision for adequate judicial review was of special concern to me.
I was dismayed by Deputy Director McMahon's testimony to the effect that the
CIA-did not believe the Bill as originally introduced would permit judicial review
of its designations of files. I commend the CIA for moving from its initial position
to one which is both more realistic and more in line with maintenance of public
confidence.
After lengthy deliberations, the CIA has agreed to an amendment to S. 1324
to provide for judicial review of an allegation that the CIA has improperly
designated a file as operational, and therefore exempt from FOIA search and
review, or that the CIA has improperly placed records solely in designated files.
In our discussions, it became clear that the Agency's central concern was not
judicial review per se, but a fear that plaintiffs might be able to use the discovery
process to circumvent the Bill's intent and uncover sensitive aspects of CIA
operational file systems. As a member of this Committee, I understand and share
the CIA's concern in this respect. For this reason, I agree with draft Report
language which states that "(t)he Committee does not intend that this amend-
ment will require CIA to expose through litigation, via discovery or other means,
the make up and contents of sensitive file systems of the Agency to plaintiffs."
However, as a strong supporter of the FOIA, I also am resolved that the Agency
must not be the sole judge of whether its decisions comply with the standards for
designation established in this Bill. Therefore, the Bill now provides full author-
ity for the courts to review the basis. for file designations. In addition, upon my
request, the CIA has agreed to Report language which makes clear that "(t)he
hill does not deprive the court of its authority to attach to its additional affidavits,
as part of its sworn response, the requested Agency records in extraordinary
circumstances where essential to determine whether such records were improp-
erly placed solely in designated files." My understanding of this language is that
while a discovery process is not open to plaintiffs, the court retains the power to
require the Agency to include such documents, even if highly classified and
tightly held, as part of affidavits submitted by the CIA as part of its sworn re-
sponse, in order that the court might itself examine those documents in camera
and ex parte if necessary to reach a determination. CIA's agreement to this lan-
guage was central to my acceptance of the amendment on judicial review.
ABUSES AND IMPROPRIETIES
Another major concern upon reading S. 1324 as introduced was that it had
inadequate provision for public access through FOIA to documents which might
pertain to an alleged abuse or impropriety involving the CIA. As originally
written, the Bill seemed to leave it to the Agency's sole discretion as to what
documents were or were not relevant to an investigation of an alleged abuse or
impropriety.
I compliment my colleague, Senator Huddeston, for his diligent work in de-
vising a solution to this issue. He has recommended a new provision in the Bill.
to which the CIA agrees, providing that designation of a file will not prevent the
search and review of that file for any information relevant to an official investi-
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gation of an alleged abuse or impropriety in the conduct of an intelligence activ-
ity. Bill language makes clear that an official investigation may be opened by
either of the two intelligence committees, as well as the Intelligence Oversight
Board, the General Counsel and the Inspector General, the internal investigative
organs of the CIA, or the Director of the Agency.
In cases where relevant documents were either withheld or overlooked in an
official investigation, such documents will be deemed to have been improperly
filed, and will be subject to the judicial review process I have already described.
Thus, the amendment will ensure that even where materials exist which were
not "reviewed and relied upon" by official investigators, such material will con-
tinue to be accessible under the FOIA upon a determination by the courts.
HISTORIANS' ISSUES
A third set of issues related to those of special interest to historians and other
research groups. Senator Durenberger has stressed the importance of ensuring
that the designation concept does not put historically valuable files permanently
out of reach of legitimate researchers.
A new provision to which the CIA has agreed will provide for review of the
designation of files at least every ten years, upon the basis of criteria to be
developed, and which must include the historical value or other public interest
in the designated operational file, and the files potential for declassification.
The second part of Senator Durenberger's approach which I also strongly
support, is an arrangement that the Agency will establish a procedure for selec-
tive declassification of material in nondesignated and dedesignated files. This
is an extremely significant agreement with the CIA, in view of the present ad-
ministration's negative policy on declassification. Senator Durenberger and Mr.
Casey can count on my support in implementing this selective declassification
system.
This change in the Bill-and the separate arrangement will ensure better ac-
cess to materials of interest to historians and other public interest groups
through the designation review and declassification process. As a cosponsor with
Senator Durenberger of the Freedom of Information Improvement Act to re-
establish the public interest standard in the national security provisions of the
FOIA, I believe inclusion of that as one of the criteria which must be weighed
by the Agency in its-periodic review of designations is a major step.
AGENCY RESPONSIVENESS
The essence of the compromise which has been reached on this Bill is a trade
of relief for the CIA from search and review of its most sensitive operational
files in return for better Agency responsiveness on FOIA requests relating to
information in other significant CIA file systems. My continued support of this
Bill on the floor and in conference with the House is predicated on the under-
standing that the Agency will fulfill its commitment. To ensure that the Agency
undertakes specific steps to this end, draft Report language stipulates, and the
Agency agrees, that:
The CIA will prepare and submit to the Committee a program of admin-
istrative measures to improve processing of FOIA requests. This program
is to include a detailed plan to eliminate the current backlog of FOIA
requests.
The Agency agrees not to reduce its budgetary and personnel allocation
for FOIA processing for two years after enactment of this Bill. This will
enable the Committee to evaluate the Agency's budgetary and personnel re-
quirements to ensure timely and responsive handling of FOIA requests.
The CIA will provide the Committee with its annual FOIA statistical
report, as well as periodic progress reports and briefings on implementation
of the program for improved FOIA response.
The other side of the coin is that the committee will make good use of its over-
sight powers and the additional information to be provided to it by the CIA to
ensure the agency fulfills its side of this bargain. I, for one, intend to do so.
OTHER ISSUES
There are a number of less critical but still insignificant matters to be spelled
out in agreed Report language. This is, I understand, well in train, and a draft
Report should soon be available for us to review. As with any piece of legislation,
interpretive Report language can be critical in establishing the Committee's
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intent. Therefore, once again, my further support for this bill is conditional
upon satisfactory completion of the report.
Finally, there is the matter of comments and ideas from interested public
groups. This has been a rather fast process for such an important piece of legis-
lation. While we have sought to consult informally with interested groups where
possible, candidly they have not had sufficient time to study the Bill as amended
and to express their views as organizations. There should be ample time for them
to examine this amended Bill as well as the Report language prior to action on the
floor. I remain ready to hear the considered views and comments of public in-
terest groups, and naturally reserve the right to take such views and comments
into account prior to a final vote on passage of the Bill after floor debate.
After this lengthy recitation. Mr. Chairman, let me repeat that I am indeed
pleased at the progress made in strengthening this Bill, and I commend the CIA
for its cooperative attitude. It gives me great satisfaction to be able to vote for
reporting the Bill as amended with a favorable recommendation to the Senate.
The CHAIRMAN. Thank you, very much, Pat.
Joe, did you have anything?
Senator BIDEN. Yes; I would like to read a portion of my statement
and then put the rest in the record, if I may.
The CHAIRMAN. That will be done.
Senator BIDEN. It is redundant, but congratulations to you, Mr.
Chairman, and to Senators Durenberger, Leahy, and Huddleston, for
your success in finding a precise legislative solution to some of the
specific problems that have been identified concerning the CIA's re-
sponsibilities under the Freedom of Information Act. For quite a few
years now, many affected parties and interested observers have de-
scribed the almost blinding complexity of this question. Others have
analyzed the competing and seemingly irreconcilable objectives of pro-
tecting the valid secrets of necessarily secret intelligence agencies on
the one hand, and insuring the American people that they have ab-
solutely the fullest possible access to Government information, on the
other.
We have all, time and time again, used the word "balance" to indi-
cate the ultimate goal of improved and more reasonable treatment for
the CIA under the Freedom of Information Act. But it was you who
worked on this in the committee who were able to see your way through
the maze of complexities and draft legislation responsive to the need
for balance.
I think one result of the committee's work on this bill over the last
several months has been an increase in the admiration which the com-
mittee has for the seriousness and respect with which the CIA has re-
sponded to requests from the public for information under the Free-
dom of Information Act.
The committee should use this markup, one of its rare opportuni-
ties, I might add, in open session, to congratulate the CIA for its
fastidious compliance with the Freedom, of Information Act, even
though the CIA had sharp, and as we have recognized today, legiti-
mate criticisms of the act. Although the American people cannot, as
we did, investigate how the CIA has met its legal responsibilities
under the Freedom of Information Act, they should be reassured
that the members of the Central Intelligence Agency have recog-
nized the rights to information of the American people.
With S. 1324, though, we are formally removing large areas of
very important information from even nominal coverage by the Free-
dom of Information Act. As such, the bill reminds us that it is only
through congressional oversight that the American people can be
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assured that the constitutional system of checks and balances extends
to secret intelligence programs.
Most of the activities of greatest concern to the American public
are precisely the ones whose records will fall into these operational
files. The implementation of the President's Executive order on intel-
ligence activities, the occurrence of U.S. intelligence operations
against U.S. persons, and the intelligence components of the conduct
of U.S. foreign policy are activities of this sort.
I feel strongly that with the passage of this bill, we should expect
from the CIA a firm commitment to provide full reporting to both
the congressional oversight committees that deal with intelligence
operations.
In short, Mr. Chairman, I think we are doing what needs to be
done, but I think it enhances or increases our responsibilities to look
at what is not any longer going to be available for public scrutiny.
Thank you, Mr. Chairman.
[The full, prepared statement of Senator Biden follows :1
STATEMENT OF SENATOR BIDEN AT MARKUP OF S. 1324, THE INTELLIGENCE
INFORMATION ACT OF 1983
I would like to congratulate and thank Senators Goldwater, Durenberger,
Leahy, and Huddleston, for their success in finding a precise legislative solution
to some of the specific problems that have been identified concerning the Central
Intelligence Agency's responsibilities under the Freedom of Information Act.
For quite a few years now, many affected parties and interested observers have
described the almost blinding complexity of this question. Others have analyzed
the competing and seemingly irreconcilable objectives of protecting the valid
secrets of necessarily secret intelligence agencies, on the one hand, and ensuring
that the American people have absolutely the fullest access to government infor-
mation possible, on the other.
We have all, time and time again, used the word "balance" to indicate the ulti-
mate goal of improved and more reasonable treatment for the CIA under the
Freedom of Information Act". But it was my colleagues on the Committee who
were able to see their way through this maze of complexities and draft a legis-
lative response that has not only the aim of balance but its achievement.
S. 1324 with amendments, has my full support.
I think one result of the Committee's work on this bill over the last several
months has been to increase the admiration that the Committee has for the
seriousness and respect with which CIA has responded to requests from the
public for information under the Freedom of Information Act.
The intelligence agencies' experience of spending hundreds of hours on the
review of highly sensitive documents that anyone with the least familiarity with
intelligence operations and techniques knows will never see the light of day can
only have been frustrating.
The Committee should use this markup, one of its rare appearances in open
session, to congratulate CIA for it fastidious compliance to FOIA even though
the CIA had sharp, and as we have recognized today, legitimate criticisms of
that Act. Although the American people cannot, as we did, fully investigate how
CIA has met its legal responsibilities under the FOIA, they should be reassured
that the members of the Central Intelligence Agency recognize the rights to
information of the American people.
Having expressed my support on S. 1324, I feel it important to remark that it
is unfortunate that S. 1324, as legitimate as its purpose is, appears along with
a series of information control initiatives, advanced by this Administration,
whose purposes are far less legitimate. Because of these other attempts to di-
minish and qualify the information available to the American public, many Amer-
icans are suspicious of any attempt whatsoever to tamper with laws or regulations
that have an effect on the free flow of government information.
For example Executive Order 12356 on National Security Information, Issued
in April 1982 reversed both in detail and in spirit a trend that reached back to
President Eisenhower's Administration of decreasing the amount of classified
government information. Similarly, the President's March 1983 Directive on Safe-
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guarding National Security Information raised the spectre of greatly enlarging
the number of current or former government officials who must submit their
writings to a pre-publication review process. There is no indication that there
has been any study of the delays in publication that this extended application
would produce, of the restraining effect it would create on public commentary, or
even of the hypothetical benefits that it would produce. That March Directive
further threatens to increase the use of the polygraph throughout the federal
government even though the merits of that particular investigative technique are
highly problematic.
These various steps are only a few of the attempts which the Administration
has made in order to curtail and re-constitute the information available to the
public on the workings of the government. As I have said, it is an ironic but
established fact that this Administration, with its scorn for the values of govern-
ment and the people who work for it, has consistently tried to limit access of
the American people to information about the workings of the government.
Fortunately, S. 1324 is a refreshing change from these broad attempts to reduce
the availability of government information. It recommends quite specific and
narrow changes in response to identified problems. It expresses a spirit of mod-
eration and compromise. It is based on concrete experience. It appears to have the
support of a spectrum of political outlooks. It appears to be, in short, a reason-
able solution to the problem of CIA's spending the time and talents of experi-
enced intelligence officers on the review of mountains of documents that have
virtually no chance of being disclosed under the Freedom of Information Act.
When S. 1324 was first introduced I had questions on several important issues.
Most importantly, these questions related to the needs for some sort of judicial
review of file designations under the bill and for continued public access to infor-
mation on intelligence improprieties and illegalities. Today I believe that the
amendments that have been worked out provide satisfactory answers to these
questions.
However, S. 1324 has the effect of accentuating the importance of Congressional
oversight of U.S. intelligence operations. It has often been said that Congressional
oversight goes hand in hand with occasional public scrutiny of intelligence activi-
ties through the window provided by the FOIA. In practice, this was never really
the case across the board. As the Committee's research has shown, under FOIA
the Central Intelligence Agency has never been required to disclose a meaningful
amount of information from its operational files.
With S. 1324, though, we are formally removing large areas of very important
information from even nominal coverage by the FOIA. As such, S. 1324 reminds
us that it is only through Congressional oversight that the American people can
be assured that the Constitutional system of checks and balances extends to
secret intelligence programs.
Most of the activities of greatest concern to the American public are precisely
the ones whose records will fall into operational files. The implementation of the
President's Executive Order on Intelligence Activities, the application of U.S.
intelligence operations against U.S. persons, and the intelligence components of
the conduct. of U.S. foreign policy are activities of this sort.
I feel strongly that with the passage of S. 1324 the Committee should expect
from the CIA a firm commitment to provide full reporting on and to facilitate
Congressional oversight of all U.S. intelligence operations.
The CHAIRMAN. Thank you, very much.
Lloyd, did you have any comments?
Senator BENTSEN. Thank you, Mr. Chairman. I'll put mine in the
record.
The CHAIRMAN. Are there comments from other members?
Senator CHAFES. Mr. Chairman, just briefly.
This represents the culmination of a long effort, as you know, in con-
nection with this area of legislation. I think a lot of credit should go to
Billy Doswell, formerly with the CIA as head of their External Affairs
Office, and who was instrumental in helping initiate work on this bill.
I know that he worked hard with the press association and others at
trying to arrive at a satisfactory solution. I take it that if it doesn't
have unanimous approval, it has a good deal of approval, which is quite
something when we're dealing with the Freedom of Information Act.
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So I just hope we can get on witl4 these compromises that have been
worked out. Finally, may I say I congratulate you, Mr. Chairman?
The CHAIRMAN. Senator Roth, do you have any comments?
Senator RoTH. No.
The CHAIRMAN. We have a quorum present, and I propose to amend
S. 1324 by striking all after the enacting clause, which ends at line 2
and substitute the following, beginning with line 3 of the proposed
substitute and continuing to the end. Is there a second?
Senator HUDDLESTON. I second, Mr. Chairman.
The CHAIRMAN. A second is heard.
All those in favor signify by saying aye..
[A chorus of ayes.]
The CHAIRMAN. The ayes have it.
Now, does anybody want to speak on the substitute?
Hearing nothing in the affirmative, all those in favor of reporting
the bill as amended will say aye.
[A chorus of ayes.]
The CHAIRMAN. The ayes have it. The bill will be reported.
The committee report for S. 1324 will be ready by the time we get
back from our recess, and it will be disseminated to members for their
approval within the next 2 weeks. In fact, it is in the final draft form
now.
Well, I want to thank all of you, and I particularly want to thank
Vicki Toensing and the whole staff. This has been a real work of love
and a challenge, because when you start tampering with the Freedom
of Information Act, it is sort of like rewriting the Bible. There are
some in favor of it and there are some opposed to it. But I think this is
going to make a big difference in the operation of the CIA. I think it
will save money and will speed up their operations.
Do any of you have any comments to make on any other subject?
Senator HuDDLESTON. Move we adjourn.
The CHAIRMAN. Move we adjourn? I hear that motion, and without
objection, the motion to adjourn is approved.
[Thereupon, at 3 p.m., the markup on S. 1324 was concluded and the
committee adjourned, subject to the call of the Chair.]
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