THE FREEDOM OF INFORMATION ACT: CENTRAL INTELLIGENCE AGENCY EXEMPTIONS H.R. 5129, H.R. 7055, AND H.R. 7056 TO ENHANCE THE FOREIGN INTELLIGENCE AND LAW ENFORCEMENT ACTIVITIES OF THE UNITED STATES BY IMPROVING THE PROTECTION OF INFORMATION NE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP04M01816R000100320002-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 206
• Document Creation Date: December 22, 2016
• Document Release Date: September 26, 2011
• Sequence Number: 2
• Publication Date: May 29, 1980
• Content Type: REGULATION

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THE FREEDOM OF INFORMATION ACT: CENTRAL
INTELLIGENCE AGENCY EXEMPTIONS
HEARINGS
SUBCOMMITTEE OF THE
COMMITTEE ON
GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
H.R. 5129, H.R. 7055, and H.R. 7056
TO ENHANCE THE FOREIGN INTELLIGENCE AND LAW EN-
FORCEMENT ACTIVITIES OF THE UNITED STATES BY IM-
PROVING THE PROTECTION OF INFORMATION NECESSARY
TO THEIR EFFECTIVE OPERATION
U.B. GOVERNMENT PRINTING OFFICE
76-9170 WASHINGTON : 1981
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COMMITTEE ON GOVERNMENT OPERATIONS
JACK BROOKS, Texas, Chairman
L. H. FOUNTAIN, North Carolina FRANK HORTON, New York
DANTE B. FASCELL, Florida JOHN N. ERLENBORN, Illinois
WILLIAM S. MOORHEAD, Pennsylvania JOHN W. WYDLER, New York
BENJAMIN S. ROSENTHAL, New York CLARENCE J. BROWN, Ohio
FERNAND J. ST GERMAIN, Rhode Island PAUL N. MCCLQSKEY, JR., California
DON FUQUA, Florida THOMAS N. KINDNESS, Ohio
JOHN CONYERS, JR., Michigan ROBERT S. WALKER, Pennsylvania
CARDISS COLLINS, Illinois ARLAN STANGELAND, Minnesota
JOHN L. BURTON, California M. CALDWELL BUTLER, Virginia
RICHARDSON PREYER, North Carolina LYLE WILLIAMS, Ohio
ROBERT F. DRINAN, Massachusetts JIM JEFFRIES, Kansas
GLENN ENGLISH, Oklahoma OLYMPIA J. SNOWE, Maine
ELLIOTT H. LEVITAS, Georgia. WAYNE GRISHAM, California
DAVID W. EVANS, Indiana JOEL DECKARD, Indiana
TOBY MOFFETT, Connecticut
ANDREW MAGUIRE, New Jersey
LES ASPIN, Wisconsin
HENRY A. WAXMAN, California
FLOYD J. FITHIAN, Indiana
PETER H. KOSTMAYER, Pennsylvania
TED WEISS, New York
MIKE SYNAR, Oklahoma'
ROBERT T. MATSUI; California
EUGENE, V. ATKINSON, Pennsylvania
WILLIAM M. JONES, General Counsel
JOHN E. MooRE, Staff Administrator
ELMER W. HENDERSON, Senior Counsel
JOHN M. DUNCAN, Minority Stag Director
GOVERNMENT INFORMATION AND INDIVIDUAL RIGHTS SUBCOMMITTEE
RICHARDSON PREYER, North Carolina, Chairman
ROBERT F. DRINAN, Massachusetts THOMAS N. KINDNESS, Ohio
GLENN ENGLISH, Oklahoma M. CALDWELL BUTLER, Virginia
DAVID W.,EVANS, Indians- JOHN N. ERLENBORN, Illinois
PETER H. KOSTMAYER, Pennsylvania
TED WEISS, New York
Ex OFFICIO
FRANK HORTON, New York
TIMOTHY H. INGRAM, Staff Director
CHRISTOPHER J. VISAS II, Counsel
EUPHON METSOER, Clerk
THOMAS G. Moaa, Minority Professional Staff
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CONTENTS
Hearings held on- Page
February 20-------------------------------------------------- 1
May 29------------------------------------------------------ 73
Texts of H. R. 5129, H.R. 7055, and H.R. 7056------------------------ 3
Statement of-
Carlucci, Frank C., Deputy Director of Central Intelligence Central
Intelligence Agency Washington, D.C.; accompanied by Mark D.
Cowan, Assistant Legislative Counsel; Ernest Mayerfeld Asso-
ciate General Counsel; George Owens, Chief, Information Privacy
Division; and Maurice Sovern, Chief, Freedom, Privacy Litigation
Group----------------------------------------------------- 23
Corson, William R--------------------------------------------- 184
Gardner, Lloyd C., professor, department of history, Rutgers Uni-
versity, on behalf of the Organization of American Historians _ 169
Halperin, Morton H., director, Center for National Security Studies___ 74
Lewis Robert, chairman, freedom of information committee, Society
of i rofessional Journalists; accompanied by Peter C. Lovenheim,
project director, Freedom of Information Service Center ---------- 187
Lynch, Mark, counsel, American Civil Liberties Union project on
national security, Center for National Security Studies ----------- 79
Theoharis, Athan, professor, department of history, Marquette
University-------------------------------------------------- 171
Letters, statements, etc., submitted for the record by-
Carlucci, Frank C., Deputy Director of Central Intelligence, Central
Intelligence Agency: Listing of unclassified publications available-- 35-48
Halperin, Morton H., director, Center for National Security Studies:
Prepared statement ----------------------------------------- 81-155
Lewis Robert, chairman, freedom of information committee, Society
of 13rofessional Journalists: Prepared statement---------------- 190-196
Lynch, Mark, counsel, American Civil Liberties Union project on
national security, Center for National Security Studies: Prepared
statement------------------------------------------------- 81-155
Preyer, Hon. Richardson, a Representative in Congress from the
State of North Carolina, and chairman, Government Information
and Individual Rights Subcommittee:
May 2, 1980, letter from Stephen E. Pelz, associate professor,
University of Massachusetts, re Freedom of Information Act_ 165
May 11, 1980, letter from Lawrence S. Wittner, associate professor
of history, State University of New York at Albany, re Free-
dom of Information Act -------------------------------- 166-168
Proposed amendment submitted by CIA_____________________ 19-22
Theoharis, Athan, professor, department of history, Marquette
University: Material relative to the hearings------------------ 176-180
APPENDIX
Summary of Freedom of Information Act litigation involving the Central
Intelligence Agency prepared by the Congressional Research Service
(February 1980) -------------------------------------------------
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THE FREEDOM OF INFORMATION ACT: CENTRAL
INTELLIGENCE AGENCY EXEMPTIONS
HousE OF REPRESENTATIVES,
GOVERNMENT INFORMATION
AND INDIvmuAL RIowrs SuBco rrn
OF THE COMMrrrEE ON GOVERNMENT OPERATIONS,
Waehvngton, D.O.
The subcommittee met, pursuant to notice, at 2:10 p.m., in room
2247, Rayburn House Office Building, Hon. Richardson Preyer (chair-
man of the subcommittee) presiding.
Present : Representatives Richardson Preyer, Robert F. Drinan,
David W. Evans, Peter H. Kostmayer, Ted Weiss, Thomas N. Kind-
ness, and John N. Erlenborn.
Also present: Timothy H. Ingram, staff director; Christopher J.
Vizas, counsel; Euphon Metzger, clerk; and Thomas G. Morr, mi-
nority professional staff, Committee on Government Operations.
Mr. PREYER. The subcommittee will come to order.
We meet today to receive the testimony of the Central Intelligence
Agency regardin the effect of the Freedom of Information Act on
its operations. This hearing will begin a dialog of what, if any,
changes maybe necessary in the public information laws over which
this subcommittee has jurisdiction.
It is with both pleasure and pride that I open this hearing : Pleasure
that we can carry on this discussion with cooperation rather than
conflict and confrontation; pride that we pursue this dialog about
the priorities and needs of even the most sensitive operations of our
Government in an open and public manner; and pride that the Cen-
tral Intelligence Agency accepts the underlying principles of free-
dom of information-the necessity in our system of government of
an informed citizenry as well as the need for the institutions of our
Government to be publicly accountable to the citizens.
Indeed, the presence of the CIA here today to present its problems
and perspectives is a reaffirmation of the basic principles of the Free-
dom of Information Act.
As Deputy Director Carlucci pointed out in his testimony before
the House Intelligence Committee last April, the authorized and
legitimate activities of the CIA which need to be kept secret can
be kept secret within the basic strictures of the FOIA. The problems
with the FOIA are largely matters of perception, not substance. Some
foreign intelligence sources and services apparently believe that be-
cause of the FOIA their actions will be made public if they cooperate
with the Agency.
(1)
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Even as we recognize this problem of perception, however, we must
remain aware of another potential problem of perception. It is all too
easy to recreate with a blank wall of secrecy the impression that the
CIA is somehow above the law-an impression which can only damage
the trust of the American people in their Government and, inevitably,
the effectiveness of this Nation's intelligence operations.
A delicate tension exists between our fundamental notions of a demo-
cratic society based on openness and informed participation by citizens
and the need for effective intelligence operations. We have struggled
with this tension as a government and as a people for the three decades
of the CIA's life. We are still working out the balance. Indeed, no one
should wonder that we are. Peacetime intelligence operations are rela-
tively new to this Nation, the product of our acceptance of enormous
international responsibilities in the wake of the Second World War.
The ideas of an informed citizenry and public accountability of pub-
lic institutions have been alive in our national consciousness since before
we adopted our Constitution nearly two centuries ago. The Freedom of
Information Act is simply the latest link in a chain of law and tradi-
tion which attempts to preserve and protect those ideas.
I hope, and I know that our members of the subcommittee share my
hope, that this hearing will ultimately lead us closer to fashioning the
final and proper balance between the need to pursue legitimate intelli-
gence activities and the equally important need for. appropriate public
accountability.
[The bills, H.R. 5129, H.R. 7055, and H.R. 7056, follow:]
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90TIff CONGRESS
1ST SESSION
H.R.5129
To enhance the foreign intelligence and law enforcement activities of the United
States by improving the protection of information necessary to their effective
operation.
IN THE -HOUSE OF REPRESENTATIVES
AUGUST 2, 1979
Mr. McCI,onY (for himself, Mr. RHODES, Mr. AsHmnoox, Mr. ROBINSON, Mr.
YouNG of Flori(* Mr., Wu mHUIRST, Mr. IcHORD, Mr. DEawnNaxz, Mr.
COLLINS of Texas, Mr. WINN, Mr. HYDE, Mr. LAFAI,OE, Mr. RUDD, Mr.
SENSBNmmnNNan, Mr. LvNOEEN, Mr. Rnoul.A, Mr. DANNEMEYna, Mr.
RoYmn, and Mr. MCDONALD) introduced the following bill; which was
referred jointly to the Permanent Select Committee on Intelligence and the
Committee on Government Operations
A BILL
To enhance the foreign intelligence and law enforcement activi-
ties of the United States by improving the protection of
information necessary to their effective operation.
1 ' Be it enacted by the Senate and House of Representa-
2 tines of the United States of America in Congress assembled,
8 That this Act may be cited as the "Foreign Intelligence and
4 Law Enforcement Enhancement Act of 1979".
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2
1 SEC. 2. Section 6 of the Act of June 20, 1949 (50
2 U.S.C. 403(g)) (commonly known as the "Central Intelli-
3 gene Agency Act of 1949"), is amended to read as follows:
4 "SEC. 6. In the interests of the security of the foreign
5 intelligence activities of the United States and in order fur-
12 organization, functions, names, official titles, salaries, or
13 numbers of personnel employed by the Agency. In further-
14 ance.of the responsibility of the Director of Central Intelli-
15 gene to protect intelligence sources and methods, informa-
16 tion in files maintained by the Agency or the National Secu-
17 rity Agency shall also be exempted from the provisions of
18 any law which require the publication or disclosure, or the
19 search or review in connection therewith, of information if
20 such files have been specifically designated by the Director of
21 Central Intelligence to be concerned with-
22 "(1) the design, function, deployment, exploitation
23 or utilization of scientific or technical systems for the
24 collection of foreign intelligence or counterintelligence
25 information;
ther to implement the proviso of section 102(d)(3) of the Na-
tional Security Act of 1947 (50 U.S.C. 403(d)(3)) that the
Director of Central Intelligence shall be responsible for pro-
tecting intelligence sources and methods from unauthorized
disclosure, the Agency shall be exempted from the provisions
of any law which require the publication or disclosure of the
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1 "(2) special activities and foreign intelligence or
2 counterintelligence operations;
3 "(3) investigations conducted to determine the
4 suitability of potential foreign intelligence or counterin-
5 telligence sources; or
6 "(4) intelligence and security liaison arrangements
7 or information exchanges with foreign governments or
8 their intelligence or security services,
9 except to the extent that information on American citizens
10 and permanent resident aliens requested by such persons on
11 themselves, pursuant to sections 552 and 552a of title 5, may
12 be contained in such files. The provisions of this section shall
13 not be superseded except by a provision of law which is en-
14 acted after the date of enactment of paragraphs (1) through
15 (4) and which specifically repeals or modifies the provisions of
16 this section.".
17 SEc. 3. Section 552 of title 5, United States Code, is
18 amended-
19 (1) by inserting at the end of paragraph (3) of sub-
20 section (a) the following new sentence: "This para-
21 graph does not require a law enforcement or intelli-
22 gene agency to disclose information to any person
23 convicted of a felony under the laws of the United
24 States or of any State, or to any person acting on
25 behalf of any felon excluded from this section.";
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1 (2) by adding at the end of subparagraph (B) of
2 subsection (a)(4) the following new sentences: "If the
3 court examines the contents of a law enforcement or
4 intelligence agency's records withheld by the agency
5 under subsection (b)(1), (b)(3), (b)(7)(A), or (bX7)(B)(iv),
6 the examination shall be in camera. The court shall
7 maintain under seal any affidavit submitted by a law
8 enforcement or intelligence agency to the court in
9 camera. In making a de novo determination under this
10 paragraph with respect to records withheld by an
11 agency under subsection (b)(3) as being records specifi-
12 cally exempted from disclosure by section 798 of title
13 18, the court shall rely on agency affidavits and shall
14 not order such agency records to be indexed or pro-
15 duced for ex parte or other review unless the court
16 finds, under the substantive categories for protection
17 established in that statute, that there appears to be no
18 basis on which such records could have been specifical.
19 ly designated for limited or restricted dissemination or
20 distribution by an agency authorized to make such a
21 designation.";
22 (3) by striking out clause (i) of subsection (a)(6)(A)
23 and inserting in lieu thereof the following:
24 "(i)(I) notify the person making the request of the
25 receipt of the request and notify the person making the
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1 request within thirty days after receipt of the request
2 of the number of pages encompassed by the request
3 and the time limits imposed by this paragraph upon the
4 agency for responding to the request;
5 "(II) determine whether to comply with the re-
6 quest and notify the person making the request of such
7 determination and the reasons therefor within sixty
8 days from receipt of the request (excepting Saturdays,
9 Sundays, and legal public holidays) if the request en-
10 compasses less than two hundred pages of records with
11 an additional sixty days (excepting Saturdays, Sun-
12 days, and legal public holidays) permitted for each ad-
13 ditional two hundred pages of records encompassed by
14 the request, but all determinations and notifications
15 shall be made within one year; and
16 "(III) notify the person making the request of the
17 right of such person to appeal to the head of the
18 agency any adverse determination; and";
19 (4) by striking out "due diligence in responding to
20 the request, the court may retain jurisdiction and allow
21 the agency" in subsection (a)(6)(C),and inserting in lieu
22 thereof "due diligence in attempting to respond to the
23 request, the court shall allow the agency";
24 (5) by striking out subparagraph (7) of subsection
25 (b) and inserting in lieu thereof the following:
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"(7)(A) records maintained, collected, or used for
foreign intelligence, foreign counterintelligence, orga-
nized crime, or terrorism purposes; or
"(B) records maintained, collected, or used for law
enforcement purposes, but only to the extent that the
production of such law enforcement records would (i)
interfere with enforcement proceedings, (ii) deprive a
person of a right to a fair trial or an impartial adjudi-
cation, (iii) constitute an unwarranted invasion of per-
sonal privacy or the privacy of a natural person who
has been deceased for less than twenty-five years, (iv)
tend to disclose the identity of a confidential source, in-
cluding a State or municipal agency or foreign govern-
ment which furnished information on a confidential
basis, and in the case of a record maintained, collected,
or used by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency
conducting a lawful national security intelligence inves-
tigation, information furnished by the confidential
source including confidential information furnished by a
State or municipal agency or foreign government, (v)
disclose investigative techniques and procedures, or (vi)
endanger the life or physical safety of any natural
person;"
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1 (6) by striking out "shall be provided to in
2 person" in the matter following paragraph (9) of sub-
3 section (b) and inserting in lieu thereof the following:
4 "not already in the public domain which contains infor-
5 mation pertaining to the subject of a request shall be
6 provided to any person properly";
7 (7) by striking out subsection (c) and inserting in
8 lieu thereof the following:
9 "(c)(1) This section does not authorize withholding of
10 information or limit the availability of records to the public,
11 except as specifically stated in this section.
12 "(2) This section shall not require a law enforcement or
13 intelligence agency to-
14 "(A) make available any records maintained, col-
15 lected, or used for law enforcement purposes which
16 pertain to a law enforcement investigation for seven
17 years after termination of the investigation without
18 prosecution or seven years after prosecution; or
19 "(B) disclose any information which would inter-
20 fere with an ongoing criminal investigation or foreign
21 intelligence or foreign counterintelligence activity, if
22 the head of the agency or in the case of the Depart-
23 ment of Justice, a component thereof, certifies in writ-
24 ing to the Attorney General, and the Attorney General
25 determines, disclosing that information would interfere
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1 with an ongoing criminal investigation or foreign intel-
2 ligence or foreign counterintelligence activity.
3 "(3) This section is not authority to withhold in-
4 formation from Congress.";
5 (8) by striking out "March 1" each place it ap-
6 pears in subsection (d) and inserting in lieu thereof
7 "December 1";
8 (9) by striking out "preceding calendar year" in
9 subsection (d) and inserting in lieu thereof "preceding
10 fiscal year";
11 (10) by striking out "prior calendar year" in sub-
12 section (d) and inserting in lieu thereof "prior fiscal
13 year"; and
14 (11) by striking out subsection (e) and inserting in
15 lieu thereof the following:
16 "(e) For the purpose of this section-
17 "(1) the term `agency' as defined in section 551(1)
18 of this title includes any executive department, military
19 department, Government corporation, Government con-
20 trolled corporation, or other establishment in the ex-
21 ecutive branch of the Government (including the Ex-
22 ecutive Office of the President), or any independent
23 regulatory agency;
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!' X"(2)' thn - r>n` -' *r ia' =tffi *,:United Statd s
2 person as Ind' by-'the Foreigg I et}igence Surve-
1 Act 6f,1918;
'`(3)'tfle' berm"`foreigzr it tel -efl fO' ie informd-
tloa relati>tig tO the `cap bilitiros~ int tons, d active--
tie8'o6f foreign-powers; orgat44iza:*r'pens; D
7 "(4) the term 'ion sig noputorintel nde' meatus
8 information gathered and activities conducted to pro-
9 tect against espionage and other clandestine intelli-
10 gene activities, sabotage, international terrorist activi-
11 ties or assassinations conducted for or on behalf of for-
12 eign powers, organizations, or persons;
13 "(5) the term `terrorism' means any activity that
14 involves a violent act that is dangerous to human life
15 or risks serious bodily harm or that involves aggravat-
16 ed property destruction, for the purpose of-
17 "(A) intimidating or coercing the civil popu-
18 lation or any segment thereof;
19 "(B) influencing or retaliating against the
20 policies or actions of the Government of the
21 United States or of any State or political subdivi-
22 sion thereof or of any foreign state, by intimida-
23 tion or coercion; or
24 "(C) influencing or retaliating against the
25 trade or economic policies or actions of a corpora-
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10
tion or other entity engaged in foreign commerce,
by intimidation or coercion; and
3 "(6) the term `organized crime' means criminal
4::.. activity by two or more persons who are engaged in a
5 continuing enterprise for the purpose of obtaining mon-
6 etary or commercial gains or profits wholely or in part
through racketeering activity.".
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96TH CONGRESS H. R. 7055
2D SESSION
IN THE HOUSE OF REPRESENTATIVES
APRIL 15, 1980
Mr. PREYER introduced the following bill; which was referred jointly to the
Committee on Government Operations and the Permanent Select Committee
on Intelligence
A BILL
To amend the Freedom of Information Act.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That section 552(b) of title 5, United States Code, is
4 amended-
5
(1) by striking out "or" at the end of paragraph
6
(8);
7
(2) by striking out the period at the end of para-
8
graph (9) and inserting in lieu thereof "; or"; and
9
(3) by adding at the end thereof the following new
10
paragraph:
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2
1 "(10) obtained, under an express promise of confi-
2 dentiality, by the Central Intelligence Agency either
3 (A) from a secret intelligence source, or (B) from a for-
4 , eign inVnlligenoe service.".
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96TH CONGRESS H. R. 7056
2D SESSION
IN THE HOUSE OF REPRESENTATIVES
ApBIL 15, 1980
Mr. PREvES (by request) introduced the following bill; which was referred jointly
to the Committee on Government Operations and the Permanent Select
Committee on Intelligence
A BILL
To amend the Freedom of Information Act.
1 Be it enacted by the Senate and House of Bepresenta-
2 tines of the United States of America in Congress assembled,
3 That section 552(b) of title 5, United States Code, is
4 amended-
5
(1) by striking out "or" at the end of paragraph
6
(8);
7
(2) by striking out the period at the end of para-
8
graph (9) and inserting in lieu thereof "; or "; and
9
(3) by, adding at the end thereof the following new
10
paragraph:
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1 "(10) information certified by the Director of Cen-
2 tral Intelligence or a designee to be: (A) intelligence
3 obtained from a person, entity or organization other
4 than a person employed by the United States Govern-
5 went; (B) information which identifies or tends to iden-
6 tify a source or potential source of information or as-
7 sistance to an intelligence agency; or (C) information
8 concerning the design, function, deployment, exploita-
9 tion or utilization of scientific or technical systems for
10 the collection of intelligence, but not including any re-
11 search programs which involve experimentation with or
12 risk to the health or safety of human beings. In each
13 such instance the certification shall be conclusive and
14 not subject to any judicial review. This certification
15 may not apply to information responsive to requests by
16 United States citizens or permanent resident aliens for
17 information concerning themselves. In the case of in-
18 formation in the files of the Federal Bureau of Investi-
19 gation the certification shall be made by the Director
2b ' of the Federal Bureau of Investigation or a designee.".
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Mr. P ntt. We are happy to have Mr. Carlucci here today as our
witness, and he is accompanied by Mr. Mayerfeld, Mr. Chase, and
Mr. Cowan.
If there are no further comments at this time, we will recognize you,
Mr. Carlucci. I believe you have a statement you would like to read
to the subcommittee at this time.
Mr. WEIss. Mr. Chairman, will the -,witnesses be sworn, as is our
practice ?
Mr. PxxYEa. I think our practice has been, where it is a legislative
hearing, that we do not ordinarily swear the witnesses; if it involves
a factfding situation, we do. So, I do not think ordinarily we would
swear the witnesses under these circumstances.
Mr. WEIss. I wonder, with your permission, if I may make a very
brief opening statement 4
Mr. Pxu t. Surely.
Mr. WEIss. Thank you.
Mr. Chairman, I, too, welcome today's hearing on the proposed
amendments to the Freedom of Information Act and express the hope
that this is only the first in a series of hearings enabling us to examine
the many components of this issue that lie at the heart of our open,
democratic system of government.
The establishment of the FOIA was a monumental step toward
guaranteeing our Nation's commitment to civil and constitutional
liberties and allowing the public access to Government documents,
information, and activities which their tax dollars fund and which,
as citizens in an open society, they should be permitted to obtain.
Through the FOIA, we have learned that certain Government agencies
have, indeed, acted outside the bounds of their authority.
We know, for example, that our intelligence agencies have gone far
beyond their legitimate function of gathering intelligence.
As we are being asked to consider exempting the CIA from disclos-
ing this and other information, let us not forget some of what the
FOIA has enabled the public to learn : that the CIA was conducting
drug experiments on individuals without their consent; that the CIA
had undertaken a program of secret recruitment on college campuses ;
that the CIA was infiltrating nonviolent political groups within the
United States-clearly outside the bounds of its mandate to gather
intelligence only in foreign countries; and that the CIA attempted to
suppress the Glomar Explorer story, among others.
I thank you, Mr. Chairman.
Mr. Psva. Thank you.
Mr. Kindness 4
Mr. KINDNESS. Thank you, Mr. Chairman.
I would like to join with Chairman Preyer in welcoming Deputy
Director Carlucci here today. Mr. Carlucci has won high marks for
his performance as an administrator in the various positions he has
held in Government.
The subject of CIA compliance with the Freedom of Information
Act has been one of continuing congressional interest in recent years.
The problems the CIA faces in its administration of the act are partic-
ularly difficult because of the unusually sensitive nature of this Gov-
ernment Agency's work.
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The principle that the public has a right to know about the work of
its Government is most. severely strained when applied to an agency
whose function often requires absolute secrecy. For example, the ideal
of public disclosure of Government activities runs entirely counter to
the security principle of "need to know" that is applied to CIA files.
This dilemma makes it important that we strike a proper balance
between desirable public access to CIA-held information, effective
congressional oversight, and legitimate intelligence-gathering efforts.
Because. of the application of the Freedom of Information Act to the
CIA, the Agency perceives problems with both the burden of compli-
ance with the act and its ability to obtain needed intelligence infor-
mation. As we begin this first in a series of hearings, I am anxious to
learn about the CIA's difficulties with the Freedom of Information
Act. I am hopeful that this effort will help us fashion a permanent
solution and carefully balance public access to the information with
valid national security interests.
Thank you, Mr. Chairman. Mr. Pi ri . Thank you.
Without objection, we will insert in the record at this point a copy
of the. proposed amendment submitted by the Central Intelligence
A ncy.
The material follows:]
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To insure that the Director of Central intelligence shall
be able to carry out his statutory responsibility to
protect intelligence sources and methods from unauthorized
disclosure.
1 Be it enacted by the Senate and House of Representatives
2 of the United States of America in Congress assembled,
3 that it is the purpose of this Act to insure that the
4 Director of Central Intelligence shall be able to* carry
5 out his statutory responsibility to protect intelligence
6 sources and methods from unauthorized disclosure.
7 Paragraph 403g of Title 50 of the United States Code is
8 amended to read as follows:
9 "In the interests of the security of the foreign intelligence
10 activities'of the United States and in order further to
11 implement the proviso of Section 403(d)(3) of this title that
12 the Director of Central Intelligence shall be responsible for
13 protecting intelligence sources and methods from unauthorized
14 disclosure, the Agency shall be exempted from the provisions
15 of any law which require the publication or disclosure
16 of the organization, functions, names, official titles,
17 salaries, or number of personnel employed by the Agency.'
18 In furtherance of the responsibilty of the Director of
19 Central Intelligence to protect intelligence sources and methods,
20 information in files maintained by an intelligence agency or
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21 component of the United States Government shall also be exempted
22 from the provisions of any law which require the publication
23 or disclosure, or the search or review in connection
24 therewith, if such files have been specifically designated
25 by the Director of Central Intelligence to be concerned
26 with: The design, function, deployment, exploitation or
27 utilization of scientific or technical systems for the
28 collection of foreign intelligence or counterintelligence
29 information; Special activities and foreign intelligence
30 or counterintelligence operations; Investigations conducted
31 to determine the suitability of potential foreign intelligence
32 or counterintelligence sources; Intelligence and security
33 liaison arrangements or information exchanges with foreign
34 governments or their intelligence or security services; Provided,
35 that requests by American citizens and permanent resident
36 aliens for information concerning themselves, made
37 pursuant to Sections 552 and 552a of Title 5, shall be
38 processed in accordance with those Sections. The provisions
39 of this Section shall not be superseded except by a
40 provision of law which is enacted after the date of this
41 Amendment and which specifically repeals'or modifies the
42 provisions of this Section."
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AMENDMENT TO SECTION 6 OF THE CIA ACT OF 1949
50 U.S.C. 403g
The draft bill amending the CIA Act of 1949 would
result in the exclusion from search, review, and release, in
connection with Freedom of Information Act requests, the
information contained in sensitive intelligence files
designated by the Director of Central Intelligence.
Current Freedom of Information law requires detailed
review of all' the information contained in these files with
a view towards release. Although existing exemptions in the
Freedom of Information Act may be employed to deny release
of much of the information requested, the perception among
those who provide foreign intelligence information is that
the United States cannot guarantee protection of that
information. This has resulted in increased reluctance
on the part of intelligence sources to be forthcoming with
information and to cooperate fully, because of fear that
their identities and the information they provide could
become public knowledge.
This amendment would permit the Director of Central
Intelligence to insure that the most sensitive categories
of intelligence information will not be subject to the FOIA
process. However, the amendment would permit the continued
review and release of finished foreign intelligence information
when such information can properly be declassified. Also,
the amendment would leave unaffected the handling of requests
made under the Freedom 'of information Act or the Privacy Act
by United States citizens or permanent resident aliens for
information on themselves.
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AMENDMENT TO SECTION 6 OF THE
CIA ACT OF 1949
CIMNGES IN EXISTIKG LAS;
50 U.S_C_ 403g
Changes in existing law are shown as follows: existing
law in which no change is proposed is shown in roman; existing
law proposed to be omitted-.is enclosed in brackets; and new
matter is underscored.
In the interests of the security of the foreign intelligence
activities of the Utited States and in. order further to
implement the proviso of Section 403(d)(3).of this title
that the Director of Central Intelligence-shall be respon-
sible for. protecting intelligence sources and methods from
unauthorized disclosure,-the Agency shall be exempted from
the provisions of [section 654 of Title 5, and the provisions
of] any [other) law which require the publication-or disclosure
of the organization, functions, names, official titles,.
salaries, or numbers of personnel employed by the Agency..
In furtherance of the responsibilit of the Director of?
Central intelligence to protect ante ligence sources and
methods, information in files maintained by an Lntel ige
._nc_
agency or component of t e United States Government sna
a so be exempted from the provisions of any law w ? cFi ?n require
~~u cation or disclosure, or search or review in connection
th,re:~i.th if such tiles been specifical esi ?nate
t Director of Central Intelligence to a cocernec.
w.th: he design, function, deployment, exploitataoa qr
utiiizat>.et?_on of scientific or technical s stems'jor ne "
co ection of foreign intelligence or couzterinte i ence
information; Special activities and foreign ante ligence or
counterintelligence operations; Investigations concct~ to o?
aeterty ne the suitability of potential foreign ante igenca
or counterintelligence sources; Intel igence an ecc urity
liaison arrangements or fn o nation exchanges with ror-yn
governments or their intelligence or security services;
Provided that requests by American citizens and permanent
resident aliens for information concerning themselves, made
pursuant to Sections 552 and 552a of Tit e 5 shall be
goceessed in accordance with those Sections. The provisions
this Section shall not a superseded except by a provision
of law which is enacted after the date of this Amen ment and
which specifically repeals or modifies the provisions of
this Section. [Provided, That in furtherance of this
section, the Director of the Bureau of the Budget shall make
no reports to the Congress in connection with the Agency
under section 947(b) of Title 5.)
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STATEMENT OF FRANK C. CARLUCCI, DEPUTY DIRECTOR OF CEN-
TRAL INTELLIGENCE, CENTRAL INTELLIGENCE AGENCY, WASH-
INGTON, D.C.; ACCOMPANIED BY MARK D. COWAN, ASSISTANT
LEGISLATIVE COUNSEL; ERNEST MAYERFELD, ASSOCIATE GEN-
ERAL COUNSEL; GEORGE OWENS, CHIEF, INFORMATION PRIVACY
DIVISION; AND MAURICE SOVERN, CHIEF, FREEDOM, PRIVACY
LITIGATION GROUP
Mr. CARLUCCI. Thank you, Mr. Chairman and members of the
subcommittee.
I am pleased to appear before you today to discuss the serious im-
pact that the Freedom of Information Act is having on the mission
and functions of the Central Intelligence Agency. I intend to be as
detailed as possible in this public session.
As you are aware, I testified on this subject in April of last year
before the House Permanent Select Committee on Intelligence Sub-
committee on Legislation. What I have to say is not a new story. I
will make no new and dramatic revelations today. The tale I will tell
is one which has been told before and which I will continue to retell
to the Congress until such time as we are granted the required relief
from this act.
Since last April we have witnessed the growth of a broad-based
congressional recognition of the intelligence community's need for re-
lief from the most damaging aspects of the current law. Congressman
Robert McClory of Illinois first introduced H.R. 5129, which contains
language which is all but identical to that which I proposed last April.
More recently, Senators Moynihan and Jackson with others have in-
troduced S. 2216, the "Intelligence Reform Act of 1980." This omnibus
piece of legislation adequately addresses our concern with the Freedom
of Information Act as well as providing relief to other critical areas
of intelligence concern. Representative C. W. "Bill" Young of Florida
has introduced H.R. 6316, the House counterpart of Mr. Moynihan's
bill. The recently proposed intelligence charter, of course, contains
language which would provide relief in this area.
My appearance before you today is another indication of serious
concern by the Congress over our problems with the FOIA. It is one
to which f attach a great importance.
I would, however, like to point out that I still face a dilemma in
appearing before you today on this subject, just as I did a year ago
when I appeared before the House Permanent Select Committee on
Intelligence. As my remarks will make clear, we have serious problems
in our country in keeping the authorized and legitimate intelligence
activities secret. The harmful effects of the Freedom of Information
Act are without question genuine, but the problem can best be ex-
amined as a matter of perception.
My testimony today will be used by the Soviet KGB and other
hostile foreign intelligence services to convince potential sources of
information that cooperation with the United States is a foolhardy
endeavor because such cooperation is bound to become public. Even so,
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I firmly believe that my appearance in open session can counteract
such attempts, if the end result is legislation which safeguards the
capability of our Agency and its officers to convincingly offer the pro-
tection from public disclosure which people who, in aiding our coun-
try and placing their life or liberty in jeopardy, rightly demand.
I also want to reiterate today that Admiral Turner and I continue
to support the general concept of openness in government. Under
Admiral Turner's leadership, over 150 finished intelligence reports
per year are made available to the public. We have moved away from
routine "no comment" answers, and we are now as responsive as pos-
sible to media inquiries.
As you may be aware, we also continue to conduct a dialog with
American academic specialists. In addition, CIA analytical personnel
increasingly participate in the public presentation of unclassified pro-
fessional papers. In this latter instance, the substantive product of
CIA is made available, thus contributing to an informed public with-
out risking the disclosure of sensitive intelligence sources and
methods.
We also support the right of the American citizen to have access to
the affairs of his Government and to be assured that information on
him, which is gathered by his Government, is accurate and will not be
abused. Our proposal for legislative relief from the FOIA recognizes
this right.
What we do question seriously and thoughtfully, however, is the
appropriateness of applying Government-wide public disclosure con-
cepts to those legitimate activities of the Central Intelligence Agency
which necessitate secrecy. It is my firm belief that the American public
recognizes and strongly supports the need for their intelligence service
to hold inviolate those secrets entrusted to their keeping. I also believe
that it was not the intent of Congress to make available for search,
review, and possible release that operational information. The Con-
n fact, has reaffirmed the uniqueness of our mission and the
information derived from it by creating special oversight committees
in both Houses of Congress. As a result, there now exist more effective
congressional oversight mechanisms to assure the accountability,
legality, and propriety of CIA activities which must remain secret.
Admiral Turner and I, as congressionally approved Presidential
appointees, insure that these committees are now and will continue to
be supplied with whatever information they need in order that the
Congress may be satisfied that the Central Intelligence Agency is con-
ducting its activities within the law.
It is, I submit, through these committees, as well as the extensive
executive branch review mechanisms, not through 23,000 foreign and
American FOIA requesters, that oversight of this Nation's most sensi-
tive activities must be undertaken.
While it is for the people, through their elected Representative in
Congress, to decide whether the best interests of the Nation are served
by the application of general openness concepts to intelligence activi-
ties, it is our position that the best interests of the Nation are not so
served. My theme today, therefore, is that the current application to
the CIA of public disclosure statutes like the Freedom of Information
Act seriously damage the Agency's ability to do its job.
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Before I provide more details, I must make one point. Under the
current Freedom of Information Act, national security exemptions do
exist to protect the most vital intelligence information. The key point,
however, is that those sources upon whom we depend for that informa-
tion have an entirely different perception. Admittedly, this perception
arises from more than the FOIA. There have, for example, been leaks.
There have been cases of espionage; former Agency employees have
written books without proper clearance beforehand; and Philip Agee
and others continue to publish a monthly bulletin-"The Covert Action
Information Bulletin"-dedicated to exposing our employees under
cover and our operations overseas. We are currently seeking remedies
to all of these problems.
The Freedom of Information Act, however, has emerged as a focal
point of the often-heard allegation that the CIA cannot keep a secret,
that is, cannot properly protect its information from public disclosure.
It has, therefore, assumed a larger than life role as a symbol of this
Nation's difficulty in keeping confidences inviolate. The perception held
by those who would only enter into arrangements with us on a confi-
dential basis is something we cannot ignore.
In order to appreciate the FOIA's impact on intelligence, it is im-
portant to clearly understand how we operate.
For instance, it is a misconception that our people spend most of
their time moving around trying to pick up information in bars and
photographing documents with secret cameras. The "cloak-and-
dagger" image is grossly unfair and misleading. Their actual mission is
to establish what is essentially a secret contractual relationship with
people in key positions with access to information that might other-
wise be inaccessible to the U.S. Government.
This is not an easy task, nor is it quickly accomplished. The principal
ingredient in these relationships is trust. To build a clandestine rela-
tionship, which in many cases entails an individual's 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.
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 of anything less than total
allegiance to the ruling party or clique may be summarily dismissed
from their jobs, incarcerated, or even executed. 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 vir-
tually impossible for most of our agents and sources in such societies to
understand the law itself, much less why an organization such as the
Central Intelligence Agency, wherein reposes their identities and the
information they have provided, should be subject to the act.
We constantly witness sensational news articles describing CIA in-
formation obtained under FOIA. It is difficult, therefore, to convince
one who is secretly cooperating with us that someday he will not
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awaken to find in a U.S. newspaper or magazine information which he
has furnished to the Agency which can be traced back to that person.
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 toward cooperation, will demand that his
information be protected. He wants absolute assurance that nothing
will be given out which could conceivably lead to his own increasingly
sophisticated counterintelligence service to appear at his doorstep. But
the barrage of intelligence disclosures are, Mr. Chairman, making it
harder and harder for our officers to convince potential sources that
their cooperation can be kept secret.
Although we assure these individuals that their information is and
will continue to be well protected, we have on record numerous cases
where our assurances have not sufficed. Foreign agents, some very im-
portant, have either refused to accept or have terminated a relation-
ship 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 information which they provide the
U.S. Government is sacrosanct. Again, we believe we can keep it so, but
it is. in the final analysis, their perception-not ours-which counts.
For example, a senior foreign official who for 2 years had provided
sensitive information on military and political affairs asked that the
clandestine payments to him be discontinued. The Agency's inability
to protect secrets because of the Freedom of Information Act and
books written by former Agency officers were cited as reasons for dis-
continuing his paid agent role.
In another case, a source who had for 3 years been cooperative and
productive on international economic activity in 1978 strongly ex-
pressed his growing concern of media disclosures of CIA intelligence
activities. This source's concern led to diminished contact with him
and finally resulted in discontinuance of the relationship entirely.
There are other instances where agents have cited the FOIA as the
reason for unwillingness to either cooperate initially, continue to` co-
operate, or cooperate as fully as in the past. How many cases of re-
fusal 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, there are many more cases of
sources who have discontinued a relationship or reduced their infor-
mation flow based on their fear of disclosure. No one can quantifv 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. As I noted in my testimony last April.
the chief of a maior foreign intelligence service sat in my office and
flatly stated that he. could no longer fully cooperate as long as the
CIA is subject to the Freedom of Information Act.
Likewise, a major.foreign intelligence service dispatched to Wash-
ington a high ranking official for the specific purpose of registering
concern over the impact of the FOIA on our relationship. I strongly
argued that we had adequate national security exemptions. While ad-
mitting awareness of these exemptions, this representative correctly
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27
noted that even information denied under the exemptions was subject
to later review and possible release by a U.S. court.
While this had not yet happened when I last testified, a U.S. district
court judge in an FOIA case has recently ordered the release of CIA
classified information. The disclosure of such information will com-
promise several extremely sensitive intelligence sources. The court has
in effect, second guessed the professional judgment of the Director of
Central Intelligence. We hope to reverse this outcome on appeal. But
we cannot guarantee the outcome of, this appeal or any future case.
Since my testimony last April,' other senior representatives of
several cooperating foreign intelligence services have expressed to
me a similar sense of dismay over our seeming inability to effectuate
relief from the most damaging provisions of the FOIA. Our stations
overseas continue to report increasing consternation over what is
seen as an inability to keep information entrusted to us secret. The
unanswerable question is : How many other services are now more
careful as to what information they pass to the United States H
. Finally, it is not only foreign sources of intelligence information
that feel threatened by the FOIA's applicability to the Central Intel-
ligence Agency. The FOIA has impacted adversely on our domestic
contacts as well. As the subcommittee is well aware, patriotic Ameri-
cans volunteer information which is invaluable to the U.S. Govern-
ment. Most of these Americans, for business and other reasons, insist
that we protect the fact of their cooperation and the information which
they provide.
Despite the universal concern over FOIA, most Americans continue
to help us. But there are those who, in assessing the risk of disclosure,
determine that it is not in their best interest to cooperate. They find
their sense of patriotism frustrated by an obligation that their private
interests not be jeopardized.
For example, the head of a large American company and former
Cabinet member told me that he thought any company was out of its
mind to cooperate with CIA as long as the provisions of.FOIA apply
to it. I think he is absolutely wrong, but again it is in the final
analysis his perception, not ours; that counts. Unfortunately, he is
not alone.
A recent approach made to a U.S. businessman with good access
to foreign military information was initially rejected. The potential
source interrogated the CIA officer at length, asked about disclosure
policies, the FOIA and its requirements, CIA responsibilities under
disclosure statutes, guarantees that CIA could really protect his in-
formation from disclosure, the effects of release by (JIA of informa-
tion to Congress, and the ability, under the FOIA or otherwise, of
his competitors to uncover information passed to CIA by his com-
pany. An agreement was finally reached where CIA was given limited
access to one person, restricted to one very narrow area of informa-
tion. We are convinced that this man's fear of disclosure caused this
severe limitation on what might otherwise have been a considerable
flow of important intelligence information.
Over the past few years this dilemma has prompted other impor-
tant U.S. sources of information to discontinue their cooperation with
U.S. intelligence.
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The FOIA is a principal symbol of the problem. These examples
demonstrate the harmful effect of the Freedom of Information Act
on our ability to collect intelligence.
Mr. Chairman, we are expected to provide the best possible informa-
tion to U.S. policymakers and to Congress. We are and will continue to
be seriously hampered in achieving this objective unless we can give
more certain guarantees to our sources that their relationship with CIA
and the information which they provide will be held inviolate.
While the vast majority of CIA information is properly secret,
efforts to excise these secrets from documents in response to FOIA
requests produces fragmented information which is often out of context
and therefore misleading. Often such fragmentary information re-
leased under FOIA has been embellished with conjecture to sensational
but misleading or fallacious stories.
For example, a previous release under FOIA of CIA information
regarding the late M. Thomas Dooley was recently seized by the world
press as positive proof that Dr. Dooley was a CIA agent. This is not the
truth. But the perception of those who read the numerous speculations
in the press cannot be easily changed, and it undoubtedly had a chilling
effect on individuals who are indeed cooperating. They may now be
asking themselves when their names will be released.
Turning again to the foreign side of matters, it is also probable that
a sophisticated foreign intelligence service could piece together, from
bits and pieces of released information in one or another area, a larger
portion of the entire picture regarding a particular intelligence activity
or operation, It is then likely that foreign intelligence services could, by
analyzing information released under the FOIA, uncover U.S. intelli-
gence needs, requirements, and tasking as they relate to their country.
Mr. Chairman, my presentation to you would be incomplete if I left
you with the impression that the sole problem created by the su1 jection
of our records to the FOIA was one of perception. FOIA processing is,
of course, carried out by human beings. This raises the possibility of
human error and of faulty judgment as to what may and what may not
be released in one or another situation. Mistakes, although few and far
between, have been made and will, I fear, continue to occur no matter
how much care we exert in processing requests.
Additionally, and perhaps more importantly, FOIA requests break
down the CIA's system of compartmented records. Our compart-
mented record system allows only those with a genuine need to know
to have access to one or another file or even individual document.
Under an FOIA request all records and files relevant to the particular
request are drawn together. They remain together during the FOIA
request, appeal, and litigation process, thus giving them far wider
distribution than they would normally have and than is consistent
with even minimally acceptable security practice. Thus we find the
anomaly that FOIA is given a rank of importance higher than the
need-to-know principle which is the underpinning of our information
security system.
Mr. Chairman, thus far I have spoken to some of the operationally
related problems which we as an agency face in our attempt to comply
with both the letter and intent of the law while, at the same time,
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insuring our sources that we will not release information provided
us in confidence.
Before closing, however, I would like to discuss some of the increas-
ing administrative burdens we face in endeavoring to comply with the
act.
In this regard, it is no surprise that the Agency is unable to meet
the congressionally imposed time limits of the Freedom of Informa-
tion Act and could, at any time, be found to be in violation of the act.
For example, with a current backlog of 2,700 information requests,
we must rely on the accepted judicial doctrine that we are exercising
"due diligence" in processing the requests on a first-received-first-
answered basis and that the delay results from "exceptional circum-
stances," that is, a substantial backlog. We argue, therefore, that the
courts should grant the Agency more time than that allowed under the
act's provisions.
However, as I noted earlier, Federal courts are beginning to be-
come more impatient with this doctrine. For example, a district court,
recognizing that it is forced to respond to the newly imposed require-
ments of the Speedy Trial Act, has now turned to us and ordered us
to complete our work on a 50,000-page case in 4 months. In reaching
this conclusion, the Federal judge stated, and I quote:
There are two ways to deal with this problem. If the Agencies cannot comply
within the limits of their budget, they should ask the Congress for additional
funds. Alternatively, they should ask that the statute be amended. But as long
as the law exists it will be the duty of this court to carry it out, to carry it out
just as we carry out the Speedy Trial Act.
As the judge suggested, today I am bringing this problem to you.
But I submit to you that additional funds will not solve our problems.
To hire 200 people to take care of our backlog would only increase
the danger that, sensitive information would be released. Given the
nature of our file systems and given the fact that the review of infor-
mation requested under the FOIA can only be efficiently and securely
accomplished by individuals knowledgeable in the material they are
reviewing, hiring more would not solve the problem. And to speed
up the process in an attempt to meet the congressionally imposed time
limits will only divert our people from doing those jobs they are meant
to do : To collect, analyze, and produce intelligence.
Further, with regard to the administrative burden, Mr. Chairman, I
offer the following :
In spite of the diversion of increased manpower, coupled with efforts
to improve our efficiency and productivity, we continue to receive a
heavier volume of FOIA and Privacy Act requests than we can handle.
In this regard, we have received over the past 5 years an average of
4,744 FOIA, Privacy Act, and Executive Order 12065 requests per year
or about 18 per day. Our current backlog is over 2,700 unanswered re-
quests, and this figure is increasing.
We have many different decentralized record systems, which may
have to be searched in order to respond to a particular FOIA request.
These divergent record systems, as I noted earlier, must be separately
maintained because of the compartmented security system which we
find essential. These record systems are maintained to meet the needs of
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our mission. This system does, however, create its own special problems
in meeting FOIA time restrictions.
A tremendous amount of internal coordination of information is re-
quired because of our compartmented record system. Naturally, we
must also constantly coordinate information with other Government
agencies, departments, and committees of the Congress to assure that
we fully protect classified data entrusted to our care and that we do not
release information obtained from another agency for which that
agency might have a legitimate basis for withholding. This further
compounds the problem in meeting the time constraints imposed by
FOIA.
The average cost of processing requests amounts to about $900 each.
In return, we have collected an average of $2 per request.
Many requests are sent to us via a form letter. For example, requests
received from universities often follow this pattern and generally
speaking are extremely broad, asking for "all information CIA has on
relationships between CIA and the university and CIA and university
staff or officials."
Other requests are of the curiosity variety. To most of these we are
able to provide only a limited number of documents but must, nonethe-
less, expend many fruitless man-hours in arriving at that conclusion.
Many others are from foreigners-possibly representatives of hostile
intelligence services and clearly some from those whose apparent pur-
pose in writing is to uncover information which would do harm to this
Nation's interests overseas.
A number are from individual authors. In one case, we have devoted
the total efforts of one person full time for a period of 17 months. This
again is for a single request by one individual.
In another area, we have already expended over 4 man-years on
FOIA requests from Philip Agee who is an admitted adversary of the
CIA, dedicated to exposing the identities of our officers serving under-
cover. It is disgraceful that we are required to assist him in his
endeavors.
Often requests are for information on U.S. personalities on whom we
are unlikely to hold information. We must, however, search extensively
only to conclude we have no information.
We frequently receive requests which are broad-gaged fishing ex-
peditions asking for information on a large variety of topics unrelated
to foreign intelligence. It is surprising to us how many requesters ap-
parently believe we have an all-inclusive record system.
As noted earlier, a major concern is that the release of inaccurate
unevaluated intelligence which is out of context is seriously misleading
to the public.
Because of the nature of the information we must review, it is im-
perative to use professional intelligence officers to make judgments on
the releases of material. This, of course, drains resources from their
prime intelligence functions. Additional funding so that we could
hire more individuals to contend with FOIA would not begin to solve
the problem.
For example, when we receive a request for information concerning,
say, Afghanistan, in the final analysis a professional intelligence of-
ficer, a senior intelligence officer familiar with Afghanistan's affairs,
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must carefully review the information destined for release or possible
release. He must determine, indeed he must be ready to swear to the
fact, that on the one hand, we are releasing all that we can and on the
other hand that in so certifying we are not inadvertently releasing in-
formation damaging to the national security or our sources overseas.
The point is that the time spent in each case utilizes time which would
otherwise be utilized in the conduct of our headquarters support to
intelligence operations overseas.
Judge Aubrey Robinson in a hearing on an FOIA case recently made
some pertinent comments. I quote :
It is like trying to run a business and have an audit at the same time. * * *
Everybody who wants to write a newspaper article, everybody who has had an
argument over the dinner table with his wife, everybody who wants to write a
book, everybody who goes to Jail and doesn't have anything else to do starts
filing Freedom of Information Act requests. If the public knew, if Congress ever
coated out this thing, I think they would take another look at it.
In this regard, since implementation of the amended FOIA, we have
expended an average of 100 man-years per year working on requests
for information under the disclosure statutes. This expenditure of
valuable human resources is greater than that spent on any one of
several areas of key intelligence interest to the United States. I ques-
tion if this is the priority Congress intends.
We have also found an increase in appeals and litigation cases re-
sulting from our inability to respond to FOIA requests according to
the time provisions of the FOIA as I noted earlier. This tends to delay
our initial processing of cases because of court-imposed deadlines
which must necessarily receive our first priority.
Even when the Agency diverts this much personnel time to comply
with the present statute, there still exists the very real possibility that
an orchestrated effort by persons hostile to the Agency could literally
swamp the Agency with FOIA reuests. Pursuing the entitlement
which any person in the world now has under the law, those persons
could perfectly legally make unlimited requests and follow up with
litigation. Quite effectively-and entirely within the U.S. legal frame-
work-they could sabotage the normal mission of the Agency.
Thus, the administrative burden of the FOIA is also a serious prob-
lem for us which, when coupled with the more serious problems I de-
scribed earlier, makes relief a matter of urgency. A remedy is difficult
to fashion, and we have given it a lot of thought.
We do not seek a total exemption from FOIA. What we do seek is a
more effective way to insure our sources that we are doing what the
1949 CIA Enabling Act directs us to do, that is, protect them. We think
we have achieved this objective, at least partially, by perfecting the
relevant CIA Act provisions in a manner fully consistent with the
spirit and letter of national. security exemptions already in the Free-
dom of Information Act. At the same time, we are also conscious of
the competing concerns of U.S. citizens whose support and confidence
we must maintain. It is for this reason that we have constructed our
amendment in such a manner as to keep all of our files accessible to
American citizens and permanent resident aliens requesting informa-
tion on themselves, subject to existing FOIA exemptions.
The amendment to the CIA Act of 1949 permits the Director of Cen-
tral Intelligence to designate certain files as exempt from the provi-
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32
sions of laws which would require the publication or disclosure, or
search and review of those files.
Those four categories of files, as listed in the amendment, contain
the most sensitive intelligence information of this Nation. It is these
files which contain the names of our sources of information. These files
do not, however, contain the finished intelligence product of CIA
which would remain subject to requests under the FOIA.
I have with me today officers who regularly work with the FOIA,
who will be happy at the conclusion of my testimony to explain in more
detail the salient features of the amendment.
It is of particular significance, you should note, that the type of ma-
terial which our proposed amendment seeks to exempt from search and
access is precisely that type of information which we have been able
to withhold in the past with the blessings of the courts. Nevertheless,
requests for this type of information continue to be received, searches
must be conducted to locate the material, documents must be reviewed,
and the result is inevitably the same-most of the material must be
denied.
Thus, under the proposed revision of the Central Intelligence
Agency Act, the public will continue to receive essentially the same
information it receives today under the FOIA. Hopefully, b the
elimination of the administrative burden occasioned by the obliga-
tion to process requests for information which predictably cannot
be released, the processing of requests for information which may be
released can be expedited.
I have now been Deputy Director for Central Intelligence for al-
most 2 years and was earlier associated with intelligence for a num-
ber of years as a foreign service officer. I tell you in all candor that
the erosion of our ability to protect our sources and methods and,
more importantly, the larger than life perception of that erosion is
the most serious problem the CIA faces today and indeed a serious
problem for the Nation. If we do not solve it, we cannot continue to be
the best intelligence organization in the world.
As President Carter stated on October 1 of last year :
We must increase our efforts to guard against damage to our crucial intel-
ligence sources and our methods of collection, without impairing civil and
constitutional rights.
Mr. Chairman, members of the subcommittee, if we believe we need
quality intelligence then we have to accept a large measure of secrecy.
FOIA has called into question around the world our ability to keep
a secret. Its application in its current form to CIA is inappropriate,
harmful, and unnecessary in light of current oversight mechanisms.
Relief from FOIA is a key step that must be taken in the revitaliza-
tion of this Nation's intelligence capability.
Mr. Chairman, that concludes my prepared statement. I am ready
to take the subcommittee's questions.
Mr. PREYER. Thank you very much, Mr. Carlucci.
The CIA, I guess, has always been the victim of perceptions around
the world so that if there is a mudslide that ruins the farmer's field
in Italy it is always blamed on the CIA, no matter what the cause.
You are telling us now that the Freedom of Information Act is
getting to be a victim of the same sort of misconception.
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As I understand it, you are telling us that the national security
exemptions under the Freedom of Information Act do work to pro-
tect the most vital information, but the point you make is that it is
not perceived by others to be working that way, and therefore it
brings in its train a lot of consequences.
While your proposed solution is not a total exemption of the CIA
from the Freedom of Information Act, it is a pretty sweeping exemp-
tion. Is the position of the CIA regarding the Freedom of Informa-
tion Act exemption shared by the administration? In other words,
is the position you are outlining to us today an administration posi-
tion on this 8
Mr. CARLUCCI. Mr. Chairman, if I may, I will address your first
point first-the question of perception. As I indicated in my testi-
mony, perception is at the heart of the problem, but it is not the
only problem. I did indicate that in processing requests there is
always the possibility for human error, particularly with such a
large volume of requests. I also indicated that partial release of in-
formation can produce misleading results to the public. Third, 1
indicated that we cannot go beyond the initial request. We do not
know what other information the requester holds. Idence, for a good
counterintelligence operation, a seemingly innocuous piece of infor-
mation being released could provide the final piece to the puzzle.
Fourth, there is the problem to which I referred of judicial review
where the judge can go beyond our classification and determine
whether that classification is valid.
All of this contributes to our perception problem, of course. It is
very difficult for us to convince somebody, say, in a Communist coun-
try that their information can be fully protected when we have all
of these possibilities facing us.
Frankly, Mr. Chairman, I would not characterize the exemption
we are requesting as a sweeping exemption. We think we are leaving
great latitude for FOIA requests. We are leaving all our finished
products subject to the FOIA process, and that, after all, is the in-
telligence information which contributes most to an informed public
debate. Moreover, we would leave subject to the FOIA process first-
person requests which represent over 50 percent of our requests.
As to the question of views within the administration, the National
Security Agency's support of our position, the Department of Jus-
tice have indicated that they have some questions which have yet
to be resolved; the Office of Management and Budget reviewed my
testimony and said that we could indicate that my testimony is not
in conflict with the President's program.
Mr. PRErER. Thank you, Mr. Carlucci.
You mentioned the finished intelligence reports, and I think you
stated that under Admiral Turner's leadership over 150 of those
have been made available. Would it be fair to say that the finished
intelligence reports are normally produced by the intelligence analysis
side of CIA and that the proposed amendment would really deal with
the blanket exemption for the CIA's Directorate of Operations, that
is, the so-called "dirty tricks" side, and that the finished intelligence
is really giving us the analysis side rather than the operation side?
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Mr. CARLUCCI. It is correct that most of the finished intelligence
is produced by the analytical side. Mr. Chairman, if you would agree,
I would be prepared to submit for the record a listing of unclassi-
fied publications that we have available. Some of them are quite
profound pieces, such as, "Soviet and U.S. Defense Activities," "In-
ternational . Energy Review," "Economic Indicators"; I have such
a list which I would be prepared to submit for the record.
Mr. PRETER. Without objection, it will be included in the record
at this point.
[The material follows:]
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WASHINGTON. D.C. 20505
PUBLIC AFFAIRS
Phone: [phone]
HOW TO OBTAIN PUBLICATIONS AND MAPS
AVAILABLE TO THE PUBLIC
? To obtain individual publications or full or tailored subscriptions:
(for documents published after 1 February 1979)
National Technical Information Service
U.S. Department of Commerce
5285 Port Royal Road
Springfield, Virginia 22161
Telephone: NTIS Order Desk 703-557-4650;
Subscription Desk 557-4630
? Cost varies with size and number of pages
Ad Hoc or Standing Order
Page Range Demand Category
1.25 $ 4.75 $ 3.80
26-75 6.25 5.00
76-125 9.00 7.20
126-175 12.50 10.00
All Microfiche 3.00
? Subscription and Deposit Account service offered
? May use American Express, VISA, Master Charge, check or
money order
? Rush handling available
? To obtain earlier publications: (published before February 1979)
Hard copy and microfilm service may also be purchased from the Library
of Congress Photoduplication Service, Washington, D.C. 20540; tele-
phone: [phone].
? To subscribe to all CIA publications:
Document Expediting Project (DOCEX)
Exchange and Gifts Division
Library of Congress
Washington, D.C. 20540
Telephone: [phone]
? Annual fee is $225 for subscription service
? To obtain Maps and Atlases:
Maps and atlases may be ordered from the Superintendent of Docu-
ments, Government Printing Office, Washington, D.C. 20402; telephone
202-783-3238.
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36
UNCLASSIFIED CENTRAL INTELLIGENCE AGENCY
PUBLICATIONS RELEASED TO THE PUBLIC
NTISUB
Number Document Number Publication Title Pub Date
SR 80-100005 Soviet and US Defense Activi- Jan 1980
ties 1970-79: A Dollar Cost
Comparison
PB 80-928501 ER El 80-001 Economic Indicators Weekly Jan 1980
Review
PB 80-928502 ER El 80-002 Economic Indicators Weekly Jan 1980
Review
PB 80-928503 ER El 80-003 Economic Indicators Weekly Jan 1980
Review
PB 80-928504 ER El 80-004 Economic Indicators Weekly Jan 1980
Review
PB 80-928505 ER El 80-005 Economic Indicators Weekly Jan 1980
Review
PB 80-928601 ER IESR 80-001
PB 80-928602 ER IESR 80-002
E/286-019 ER IESR 79-019
International Energy Statistical Jan 1980
Review
International Energy Statistical Jan 1980
Review
International Energy Statistical Dec 1979
Review
E/285-052 ER El 79-052
E/285-051 ER EI 79-051
rope: A Statistical Compilation
75 pgs
Economic Indicators Weekly Dec 1979
Review
Economic Indicators Weekly Dec 1979
Review
E/285-050 ER El 79-050
E/285-049 ER El 79-049
E/284-012 CR CS 79-012
Economic Indicators Weekly Dec 1979
Review
Economic Indicators Weekly Dec 1979
Review
Chiefs of State and Cabinet Dec 1979
Members of Foreign Govern-
ments
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/280-015
ER 79-10631
An Analysis of the Behavior
of Soviet Machinery Prices,
Dec 1979
1960-73
E/281-018
CR 79-16593
Directory of Soviet Officials,
Volume I: National Organiza-
tions 521 pgs
Nov 1979
E/281-017
CR 79-100-70
USSR State Committee for Sci-
ence and Technology (Wall
Chart)
Nov 1979
E/284-011
CR CS 79-011
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Nov 1979
E/286-018
ER IESR 79-018
International Energy Statistical
Review
Nov 1979
E/286-017
ER IESR 79-017
International Energy Statistical
Review
Nov 1979
E/285-048
ER IE 79-048
Economic Indicators Weekly
Review
Nov 1979
E/285-047
ER IE 79-047
Economic Indicators Weekly
Review
Nov 1979
E/285-046
ER IE 79-046
Economic Indicators Weekly
Review
Nov 1979
E/285-045
ER IE 79-045
Economic Indicators Weekly
Review
Nov 1979
E/285-044
ER El 79-044
Economic Indicators Weekly
Review
Nov 1979
E/280-014
PA 79-10474
A Guide to Political Acro-
nyms 14 pgs
Oct 1979
E/279-016
CR 79-15444
Directory of Officials of the
Republic of Cuba 314 pgs
Oct 1979
E/279-015
CR 79-15445
Cuban Leadership (Wall Chart)
11 pgs
Oct 1979
E/285-043
ER El 79-043
Economic Indicators Weekly
Review
Oct 1979
E/286-016
ER IESR 79-016
International Energy Statistical
Review
Oct 1979
E/284-010
CR CS 79-010
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Oct 1979
E/282-014
CR 79-11830
Chinese Ministry of Foreign
Oct 1979
Affairs (Wall Chart)
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/279-017
CR 79-15804
Directory of Officials of the
Hungarian People's Republic
18 pgs
Oct 1979
E/281-016
ER 79-10571
USSR: Role of Foreign Tech-
nology in the Development of
the Motor Vehicle Industry
35 pgs
Oct 1979
E/286-014
ER IESR 79-014
International Energy Statistical
Review
Oct 1979
E/286-015
ER IESR 79-015
International Energy Statistical
Review
Oct 1979
E/285-040
ER El 79-040
Economic Indicators Weekly
Review
Oct 1979
E/285-041
ER EI 79-041
Economic Indicators Weekly
Review
Oct 1979
E/285-042
ER El 79-042
Economic Indicators Weekly
Review
Oct 1979
E/285-039
ER El 79-039
Economic Indicators Weekly
Review
Sep 1979
E/286-012
ER IESR 79-012
International Energy Statistical
Review
Sep 1979
E/286-013
ER IESR 79-013
International Energy Statistical
Review
Sep 1979
E/279-012
ER 79-10412U
Communist Aid Activities in
Sep 1979
Non-Communist Less Devel-
oped Countries 1978 51 pgs
E/282-013
ER CIT 79-001
China: International Trade
Quarterly Review, First Quarter
Sep 1979
1979 42 pgs
E/279-013
CR 79-12585
Czechoslovak Communist Party
(KSC)
Sep 1979
E/279-014
CR 79-12586
Government of the Czechoslo-
vak Socialist Republic (Wall
Chart) 8 pgs
Sep 1979
E/279-011
CR 79-15012
Directory of Officials of the So-
cialist Republic of Romania
Sep 1979
187 pgs
E/284-009
CR CS 79-009
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Sep 1979
E/285-036
ER El 79-036
Economic Indicators Weekly
Review
Sep 1979
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/285-037
ER El 79-037
Economic
Review
Indicators
Weekly
Sep 1979
E/285-038
ER El 79-038
Economic
Review
Indicators
Weekly
Sep 1979
E/280-011
ER 79-10466
The US Position in World Mar-
kets 42 pgs
Aug 1979
E/285-031
ER El 79-031
Economic
Review
Indicators Weekly
Aug 1979
E/285-032
ER EI 79-032
Economic
Review
Indicators Weekly
Aug 1979
E/285-033
ER El 79-033
Economic
Review
Indicators Weekly
Aug 1979
E/285-034
ER El 79-034
Economic
Review
Indicators Weekly
Aug 1979
E/285-035
ER El 79-035
Economic
Review
Indicators Weekly
Aug 1979
E/286-010
ER IESR 79-010
International Energy Statistical
Review
Aug 1979
E/286-011
ER IESR 79-01I
International Energy Statistical
Review
Aug 1979
E/281-014
CR 79-14399
The Soviet Leadership Since
Stalin: CPSU Politburo and
Secretariat, 1952-1979 (Wall
Chart) 14 pgs
Aug 1979
E/280-013
ER 79-10274
Handbook of Economic Statis-
Aug 1979
tics 1979 268 pgs*
E/284-008
CR CS 79-008
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Aug 1979
E/281-015
CR 79-10123
Evolution of the Central Admin-
istrative Structure of the USSR
1917-1979 (Wall Chart)
Aug 1979
E/279-010
CR 79-11244
Yugoslavia Government Struc-
ture (Wall Chart) 7 pgs
Aug 1979
E/279-009
CR 79-11245
Structure of the League of Com-
munists of Yugoslavia (LCY)
(Wall Chart)
Aug 1979
E/279-005
CR 79-14078
Directory of Officials of The
Polish People's Republic 264 pgs
Aug 1979
E/282-012
CR 79-14074
Chinese Communist Party
Organizations 11 pgs
Aug 1979
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/280-010
ER 79-10327U
Years Ahead 91 pgs*
E/285-027
ER El 79-027
Economic Indicators Weekly
Review
Jul 1979
E/285-028
ER El 79-028
Economic Indicators Weekly
Review
E/285-029
ER El 79-029
Economic Indicators Weekly
Review
Jul 1979
E/285-030
ER El 79-030
Review
Jul 1979
E/286-008
ER IESR 79-008
International Energy Statistical
Review
Jul 1979
E/286-009
ER IESR 79-009
International Energy Statistical
Review
Jul 1979
E/281-013
CR 79-13337
Appearances of Soviet Leaders
January-December 1978
Jul 1979
253 pgs
E/284-007
CR CS 79-007
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Jul 1979
E/280-012
GC BIF 79-002
National Basic Intelligence
Factbook 248 pgs*
Jul 1979
E/280-009
ER 79-10425
The Burgeoning LDC Steel
Industry: More Problems for
Major Steel Producers 16 pgs
Jul 1979
E/281-012
ER 79-10344
USSR: Trends and Prospects in
Educational Attainment, 1959-
Jul 1979
1985 39 pgs
E/282-011
ER 79-10374
China: A Statistical Compendium
Jul 1979
E/280-008
International Political effects of
the Spread of Nuclear Weapons
Jun 1979
283 pgs
E/279-007
CR 79-02598
Directory of Officials of the
People's Socialist Republic of
Albania 99 pgs
Jun 1979
E/279-003
CR 79-12254
Directory of Officials of the
Democratic People's Republic of
Korea 137 pgs
Jun 1979
E/284-006
CR CS 79-006
Chiefs of State and Cabinet
Members of Foreign Govern-
ments 130 pgs
Jun 1979
E/281-011
ER 79-10276
Soviet Strategy and Tactics in
Commercial Negotiations with
the US 19 pgs
June 1979
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NTISUB
Number Document Number Publication Title Pub Date
E/282-009 CR 79-12264 Appearances & Activities of May 1979
Leading Chinese Officials Dur-
ing 1978 1043 pgs
E/279-005 CR 79-10007 USSR: Ministry of Foreign May 1979
Trade (Wall Chart) 11 pgs
E/279-006 CR 79-10822 Lao People's Democratic Re- May 1979
public Party and Government
Structure (Wall Chart)
E/279-006 CR 79-12092 CPSU Politburo and Secre- May 1979
tariat: Positions and Responsi-
bilities (Wall Chart) 4 pgs
E/281-010 CR 79-12053 CPSU Central Committee: May 1979
Executive and Administrative
Apparatus (Wall Chart)
E/282-010 CR 79-12497 Academies of Sciences and May 1979
Social Sciences of the People's
Republic of China (Wall Chart)
16 pgs
E/280-007 ER 79-10305 The US Position in World May 1979
Markets 19 pgs
E/282-007 ER 79-10245 China: The Steel Industry in the May 1979
1970s and 1980s 20 pgs
NFAC 79-10001'? CIA Publications Released to May 1979
the Public Through Library of
Congress DOCEX
E/286-005 ER IESR 79-005 International Energy Statistical May 1979
Review
E/286-006 ER IESR 79-005 International Energy Statistical May 1979
Review
E/285-018 ER El 79-018 Economic Indicators Weekly May 1979
Review
E/285-019 ER El 79-019 Economic Indicators Weekly May 1979
Review
E/285-020 ER El 79-020 Economic Indicators Weekly May 1979
Review
E/285-021 ER El 79-021 Economic Indicators Weekly May 1979
Review
E/279-004 CR 79-11490 Directory of Officials of the Apr 1979
Socialist Federal Republic of
Yugoslavia 208 pgs
E/279-003 RP 79-10162 Cuban Chronology 21 pgs Apr 1979
E/282-005 ER 79-10206 China: Agriculture in 1978 Apr 1979
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/286-004
ER IESR 79-004
International Energy Statistical
Review
Apr 1979
E/285-014
ER EI 79-014
Economic Indicators Weekly
Review
Apr 1979
E/285-015
ER El 79-014
Economic Indicators Weekly
Review
Apr 1979
E/285-016
ER El 79-014
Economic Indicators Weekly
Review
Apr 1979
E/285-017
ER EI 79-014
Economic Indicators Weekly
Review
Apr 1979
E/284-004
CR CS 79-004
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Apr 1979
E/282-006
CR 79-11870
Directory of Chinese Scientific
and Educational Officials
Apr 1979
560 pgs
E/284-003
CR CS 79-003
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Mar 1979
E/280-004
RP 79-10149
International Terrorism in 1978
Mar 1979
E/281-007
ER 79-10131
Simulations of Soviet Growth
Options to 1985
Mar 1979
E/280-005
ER 79-10067
Recent Gains in Nonfuel Trade
Between The Developing
Nations 55 pgs
Mar 1979
E/281-006
CR 79-11484
Directory of Soviet Officials,
Volume III: Union Republics
Mar 1979
221 pgs
E/282-008
CR 79-10564
Politburo of the 11th Chinese
Communist Party Central Com-
mittee 11 pgs
Mar 1979
E/281-005
CR 79-10005
Directory of Soviet Officials,
Volume II: RSFSR Organiza-
tions 235 pgs
Mar 1979
E/282-003
SI 79-10024
Plant Breeding and Protection
Research For Food Production
in China 18 pgs
Mar 1979
E/280-003
ER 79-10145
Non-OPEC LDC Terms of
Mar 1979
Trade, 1970-77 28 pgs
E/286-003
ER IESR 79-003
International Energy Statistical
Review
Mar 1979
E/285-009
ER EI 79-009
Economic Indicators Weekly
Review
Mar 1979
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NTISUB
Number
Document Number
Publication Title
Pub Date
E/285-010
ER El 79-010
Economic Indicators Weekly
Review
Mar 1979
E/285-011
ER EI 79-011
Economic Indicators Weekly
Review
Mar 1979
E/285-012
ER EI 79-012
Economic Indicators Weekly
Review
Mar 1979
E/285-013
ER El 79-013
Economic Indicators Weekly
Review
Mar 1979
E/285-005
ER EI 79-005
Economic Indicators Weekly
Review
Feb 1979
E/285-006
ER El 79-006
Economic Indicators Weekly
Review
Feb 1979
E/285-007
ER EI 79-007
Economic Indicators Weekly
Review
Feb 1979
E/285-008
ER El 79-008
Economic Indicators Weekly
Review
Feb 1979
E/285-002
ER IESR 79-002
International Energy Statistical
Review
Feb 1979
E/284-002
CR CS 79-002
Chiefs of State and Cabinet
Members of Foreign Govern-
ments
Feb 1979
E/280-002
ST 79-10001
The Holocaust Revisited: A Ret-
rospective Analysis of the
Auschwitz-Birkenau Extermina-
tion Complex
Feb 1979
E/281-003
ER 79-10001
SOVSIM: A Model of The
Soviet Economy 52 pgs
Feb 1979
ER 79-10020U
China: Post-Mao Search for
Civilian Industrial Technology
26 pgs
Feb 1979
E/282-002
ER 79-10092
Chinese Coal Industry: Pros-
pects Over the Next Decade
17 pgs
Feb 1979
E/281-002
ER 79-10057
USSR: Long-Term Outlook for
Grain Imports 29 pgs
Feb 1979
E/280-001
SI 79-10010
Foreign Development and
Application of Automated Con-
trols for the Steel Industry
21 pgs
Jan 1979
GC BIF 79-001
National Basic Intelligence
Factbook?
Jan 1979
CR 79-10464
CPSU Central Committee:
Executive and Administrative
Apparatus
Jan 1979
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NTISUB
Number Document Number Publication Title Pub Date
E/282-004 ER 79-10073 China: Demand for Foreign Jan 1979
Grain
CR 79-10008 Directory of Officials of the Jan 1979
Bulgarian People's Republic**
SR 79-10004 A Dollar Cost Comparison of Jan 1979
Soviet and US Defense Activi-
ties, 1968-78**
ER El 79-001 Economic Indicators Weekly Jan 1979
Review
ER EI 79-002 Economic Indicators Weekly Jan 1979
Review
ER El 79-003 Economic Indicators Weekly Jan 1979
Review
ER El 79-004 Economic Indicators Weekly Jan 1979
Review
ER IESR 79-001 International Energy Statistical Jan 1979
Review
E/279-001 CR 79-10001 Cuban Leadership (Wall Chart) Jan 1979
E/279-002 CR 79-10002 Directory of Cuban Officials Jan 1979
E/284-001 CR CS 79-001 Chiefs of State and Cabinet Jan 1979
Members of Foreign Govern-
ments
E/281-002 ER 79-10057 USSR: Long-Term Outlook for Jan 1979
Grain Imports
'Available through Government Printing Office.
"Available only through Library of Congress, Photoduplication.
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UNITED STATES GOVERNMENT PRINTING OFFICE
SUPERINTENDENT OF DOCUMENTS
WASHINGTON, D.C. 20402
January 1980
A. General Reference Maps of Foreign Countries
These multi-colored Central Intelligence Agency maps identify major roads,
population density, major industries, the location of natural resources, and other
specific features of the given country. Each map is wrapped in a sturdy envelope for
protection.
Stock No.
Brazil. 1978. 22 x 25 in. 041-015-00052-7
Bulgaria. 1972. 23 x 20 in. 04 1-0 1 5-00006-3
Burma. 1978. 24 x 23 in. 041-015-00007-1
Cambodia. 1972. 24 x 18 in. 041-015-00004-7
China. 1979. 041-015-00106-0
Chile. 1972. 24 x 22 in. 041-015-00020-9
Cyprus. 1972. 17 x 25 in. 041-015-00025-0
Czechoslovakia. 1974. 20 x 22 in. 041-015-00070-5
Denmark. 1974. 24 x 18 in. 041-015-00064-1
Ecuador. 1973. 14 x 23 in. 041-015-00045-4
Egypt. 1978. 16 x 36 in. 041-015-00024-1
Ethiopia. 1978. 18 x 25 in. 041-015-00022-5
Germany, East. 1978. 24 x 18 in. 041-015-00050-1
Germany, West. 1972. 24 x 28 in. 041-015-00116-7
Greece. 1976. 17 x 28 in. 041-015-00062-4
Guatemala. 1972. 25 x 16 in. 041-015-00029-2
Guinea. 1973. 21 x 26 in. 041-015-00042-0
Guyana. 1975. 16 x 22 in. 041-015-00044-6
Honduras. 1973. 21 x 19 in. 041-015-00048-9
Hungary. 1978. 22 x 25 in. 041-015-00031-4
Iceland. 1978. 17 x 18 in. 041-015-00040-3
India with Sikkim and Bhutan. 1978. 24 x 30 in. 041-015-00051-9
Indonesia. 1973. 30 x 22 in. 041-015-00027-6
Israel and Occupied Territories. 1978. 24 x 26 in. 041-015-00091-8
Italy. 1978. 26 x 20 in. 041-015-00056-0
Ivory Coast. 1972. 18 x 28 in. 041-015-00011-0
Jamaica. 1978. 18 x 21 in. 041-015-00093-4
Jordan. 1978. 26 x 30 in. 041-015-00026-8
Kenya. 1974. 20 x 18 in. 04 1-0 1 5-00065-9
Korea, North. 1972. 27 x 23 in. 041-015-00030-6
Korea, South. 1978. 20 x 26 in. 041-015-00053-5
Kuwait, Bahrain, Qatar, and United Arab Emirates. 041-015-00009-8
1978. 21 x 30 in.
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Lebanon. 1979. 22 x 26 in.
041-015-00101-9
Liberia. 1973. 16 x 23 in.
041-015-00057-8
1974
29 x 19 in
Lib
a
041-015-00063-2
y
.
.
.
Malta. 1978. 11 x 17 in.
041-015-00041-4
Martinique, Guadeloupe and French Guinea. 1972.
041-015-00014-4
15 x 23 in.
Mauritius. 1972. 11 x 15 in.
041-015-00005-5
Mexico. 1978.
041-015-00100-1
Morocco. 1973. 18 x 29 in.
041-015-00036-5
Mozambique. 1973. 20 x 24 in.
041-015-00049-7
Namibia and Walvis Bay. 1978. 19 x 27 in.
041-015-00097-7
Nigeria. 1973. 23 x 26 in.
041-015-00034-9
Pakistan. 1973. 17 x 28 in.
041-015-00054-3
Panama. 1974. 19 x 23 in.
041-015-00061-6
People's Republic of China. 1978. 23 x 28 in.
041-015-00010-1
Philippines. 1974. 21 x 25 in.
041-015-00060-8
Poland. Rev. 1977. 17 x 27 in.
041-015-00090-0
Portugal. 1972. 22 x 22 in.
041-015-00018-7
Rhodesia, South. 1979. 22 x 26 in.
041-015-00110-8
Saudi Arabia. 1979. 23 x 26 in.
041-015-00107-8
Senegal and Gambia. 1972. 20 x 24 in.
041-015-00023-3
Seychelles. 1978. 20 x 24 in.
041-015-00008-0
Singapore. 1973. 8 x 16 in.
041-015-00038-1
Somalia and Djibouti. 1977. 20 x 25 in.
041-015-00089-6
Spain. 1974. 21 x 17 in.
041-015-00069-1
Sweden. 1973. 20 x 18 in.
041-015-00037-3
Thailand. 1974. 21 x 22 in.
041-015-00068-3
Tunisia. 1978. 22 x 21 in.
041-015-00015-2
Turkey. 1974. 20 x 25 in.
041-015-00067-5
U.S.S.R., Summary. 1978. 23 x 31 in.
041-015-00096-9
U.S.S.R., Terrain and Transportation. 1974.
041-015-00066-7
19 x 29 in.
Uruguay. 1974. 18 x 23 in.
041-015-00059-4
Venezuela. 1978. 23 x 28 in.
041-015-00003-9
Vietnam, South. 1972. 24 x 29 in.
041-015-00021-7
Yemen (Aden). 1973. 19 x 27 in.
041-015-00043-8
Yemen (San'a). 1973. 20 x 21 in.
041-015-00033-1
Yugoslavia. 1973. 17 x 27 in.
041-015-00035-7
Zaire. 1978. 18 x 30 in.
041-015-00032-2
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47
B. Atlases and Publications
National Bask Intelligence Factbook. This is a compilation of basic data on
political entities worldwide, and is coordinated and published Jan. and July by the
Central Intelligence Agency.
S/N 041-015-00103-5
India Ocean Atlas. Issued by the Central Intelligence Agency, this colorful
publication goes beyond the scope of a conventional atlas by providing a wide variety
of economic, historical, and cultural data in addition to the usual geographic
information. In the interest of simplicity and clarity, it employs a number of
innovative graphic techniques as well as standard regional and thematic maps, charts,
and photographs. It is designed as an introduction and general reference aid for those
interested in the natural environment, resources, shipping, and political relationships
of the Indian Ocean and its islands. 1976. 80 p. il.
S/N 041-015-00080-2
Atlas of Issues in the Middle East. Hostility among ethnic, religious, and
traditional groups constantly threatens the Middle East, and at times erupts into open
warfare. The issues in the Middle East that set peoples and nations against one
another are numerous, complex, and diverse. Some are recent, but the origins of
others may be traced thousands of years into the past. This atlas, by maps, charts,
photographs and brief texts, highlights the critical issues and provides basic
geographic, sociological, and economic perspectives of the area. 1973. 40 p. il.
S/N 041-015-00046-2
People's Republic of China, Administrative Atlas. 1976. 68 p. il., publications
measures 10 x 14 in.
S/N 041-015-00076-4
Polar Regions Atlas. This atlas describes the developments taking place in the
polar regions, both Arctic and Antarctic. It covers discovery and exploration, climate,
physical features, natural resources, transportation, and other information relating to
the regions. 1978. 66 p. il., 2 maps.
S/N 041-015-00094-2
U.S.S.R. Agriculture Atlas. This Central Intelligence Agency book, complete
with comprehensive statistics, examines Soviet agriculture, its role in their economy,
and the policies that govern it. Sources include studies by Russian agronomists and
geographers, as well as official government reports. The book deals with Soviet
technology, irrigation and drainage systems, land use, and erosion control. It analyzes
the Russian system of farming and discusses the status of the country's top
agricultural products, including corn, rice, and oats. It also compares their system
with ours. 1974. 59 p. il.
S/N 041-015-00073-0
Maps of the World's Nations: Publications measure 10 x 14 in.
? Vol. 1, Western Hemisphere. Shows the boundaries and principal cities, rivers,
and roads of each of the Western Hemisphere's nations on individual color maps.
1976. 46 p. il.
S/N 041-015-00078-1
? Vol. 2, Africa. Provides a one-page color map of each of Africa's nations,
showing major cities, roads, and bodies of water. Includes a diagram illustrating the
size of each country in relation to the U.S. and a brief summary of basic geographic
data. 1977. 55 p. il.
S/N 041-015-00083-7
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? China map, Pinyin Edition. Is a one-page multi-colored map which incorpo-
rates the new Pinyin (phonetic alphabet) spelling of names that became effective on
1 January 1979. The gazetteer on the reverse side of the map includes both the Pinyin
and Wade-Giles renditions of geographic names. Most linear, spot location and name
data were computer generated and plotted by the CIA's Cartographic Automated
Mapping Program and World Data Bank 11.
? World Data Bank 11. This cartographic data base, produced by the Central
Intelligence Agency, represents natural and manmade features of the world in a
digital format. Approximately six million points are contained on five separate
geographic area files. Also available is the Cartographic Automatic Mapping
Program, an IBM System/360 FORTRAN Level H or G and Assembly Language
Code (ALC) program that performs a wide variety of cartographic functions and can
be used in conjunction with World Data Bank 11. Both the World Data Bank II and
the Cartographic Automatic Mapping Program can be obtained from the National
Technical Information Service (World Data Bank II PB 271-874-Set) (Cartographic
Automatic Mapping Program FSWEC 780129)
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Mr. CARLucci. It is accurate to say that the exemption that we pro-
pose would encompass most-I am not certain "all"-of the files of
the DDO.
Mr. Chairman, let me emphasize that the DDO is a branch of our
activity that is engaged in clandestine intelligence collection and is
also charged, pursuant to processes established by law, with carrying
out special activities should it be determined by the President that
these activities need to be undertaken. I would not characterize it as
an organization that engages in "dirty tricks," sir.
Mr. PREYER. Perhaps I should not have used the popular phrase-
ology there.
f (lo want to commend you on your new openness attitude that you
have mentioned. You have given up the "no comment" response. I have
been interested in the Presidential scholars that come by my office from
the high schools-the first thing they tell me when I ask them what
they are doing in Washington is, "Well, tonight we are going out to
the CIA headquarters." So I think you are creating some good will
there.
In trying to get some handle on how much information your amend-
ment might exempt, could you give us a rough approximation of
how much of the information contained in the Rockefeller Commis-
sion on the CIA domestic activities report would have been required
to be made public under the amendment that you propose to the Free-
dom of Information Act 4
Mr. CARLUCCI. Mr. Chairman, I would be prepared to submit some-
thing for the record. I have not recently reviewed the entire Rocke-
feller Commission report. I believe that most of the information they
provided would be made available. If you are referring to the oft-
cited case of MKULTRA, as our amendment is framed, we would be
responsive to first-person requests on drug testing. So, that would get
at the MKULTRA type of thing.
I am not sure if that answers your question, but I would be glad to
supply something for the record. Perhaps others of my colleagues
could answer.
Mr. PREYER. On the finished intelligence report side of things, I
gather that there was only one finished intelligence report in that
operation, and I wonder if it would exempt everything else-all of
the other files. I am talking about the CHAOS program.
Mr. CmmucrI. Perhaps Mr. Mayerfeld could answer that.
Mr. MAYER1 ELD. Mr. Chairman, is your question, had there never
been a Rockefeller Commission would the FOIA have produced the
kind of information that was in the Commission report 8 Was that
your question H
Mr. Puri. Essentially, that is the question.
Mr. CA1u uccI. I think your question pertained to our amendment-
our proposed amendment. Am I correct 4
Mr. PREYER. Well, let us put it this way. If your amendment was
in effect right now-was the law-or was in effect at the time of the
Rockefeller Commission, how much information contained in that
Rockefeller Commission study would have been required to have been
made available under your amendment? In other words, would it have
blocked the Rockefeller Commission from everything?
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Mr. CARLUCCI. Not at all. The Rockefeller Commission essentially
used the information that was provided by the Agency and made it
public. There is nothing in either the current FOIA information or
anything we propose that would prevent it.
Mr. PimyER. Thank you.
Father Drinan ?
Mr. DRINAN. Thank you, Mr. Chairman.
Mr. Carlucci, I have reviewed here the nine exemptions from the
FOIA. You have all types of ways by which you can keep things from
individuals. You know them better than I. If all else fails, you can
classify everything as it comes in, and then you never have to give
it out.
So, my specific question is this. What information that the CIA
has been releasing under the FOIA would no longer have to be re-
leased if you got the law that you want ? What precisely are you seek-
ing to protect ? I understand all about perception. That is the problem
on which people have to be educated. But what previously have you
released that you regret that you are required to release?
Mr. CARLUCCI. Under the amendment that we propose, Father
Drinan, we would essentially protect from search and disclosure our
sources and methods, that is, our most sensitive intelligence operations.
We would not protect the finished product, as I indicated earlier. We
would protect the how and why.
Mr. DRINAN. Mr. Carlucci, what have you been required to release
that you think should not have been released ? Give me a, b, and c.
Mr. CARLUCCI. That is precisely the point, Father Drinan. In going
through this process, when we come to sensitive sources and methods,
after pulling the files together-contrary to good security practice-
and reviewing them, we, in effect, are releasing a lot of shredded paper
that does not contribute to the public dialog.
Hence, we are saying to the Congress, "Why not give us an exemp-
tion from this process which would (a) prevent the possibility of
human error, (b) deal with the counterintelligence problem, (c) help
us with the judicial review, and, above all, help us with the perception
problem ?"
Mr. DRINAN. Our problem and our duty is to make the Agency
accountable.
You are asking for less judicial review; you are asking that the num-
ber of people in the Congress who have some responsibility be nar-
rowed and lessened; and now the question is, to whom' are you
accountable? You want to be almost totally exempt from the FOIA,
and where is the accountability? That is our job.
Mr. CARLUCCI. Father Drinan, we are not asking for exemption from
accountability. On the contrary, we welcome accountability to the
Congress. And I would suggest to you, sir, that the select committees
in both the House and the Senate are doing a very effective job of over-
sight. We are constantly before them. They have total access to our
information. I would submit that this is* the proper vehicle for
accountability.
If you are referring to the Hughes-Ryan amendment, there has been
a suggestion-yes, sir-that briefing eight committees on covert action
missions is contrary to good security practice, but never has this
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Agency under Admiral Turner's and my leadership suggested that it
be exempt from accountability. Indeed, that would be the last thing
that we want.
Mr. DRINAN. To press my point, Mr. Carlucci, there are at least
three or four judicial decisions that I know of where you people have
been sustained against a person requesting under the FOIA certain
information. So, I do not see really where you have released anything
that has damaged the Agency or has put something into public domain
that should not be there.
You are just saying, "Give us further secrecy so that we can assure
our people in foreign lands that under no circumstances would it ever
be possible to let it out because we are not even going to process the
requests."
Mr. CARLUCCI. No, sir. Once again, we have indicated that we would
process a substantial number of requests. I would estimate that our
proposed amendment would only reduce our workload by about 15 to
20 percent.
Frankly, sir, we have prevailed in more than three or four court
cases. We have prevailed in something like 72.
Mr. DRINAN. You have never lost, as a matter of fact.
Mr. CARLUCCI. No, sir.
Mr. DRINAN. You had a big victory yesterday in the Snepp decision,
awarding the Government book royalties. You can take all the money
you are going to get and process the FOIA requests. [Laughter.]
Mr. CARLIICCI. Father Drinan, may I correct the record on that
point? Two district judges, as I indicated in my prepared statement,
have recently ruled that information which we think should be classi-
fied should be declassified under the Freedom of Information Act. This
declassification, in our udgment, will be seriously damaging to exist-
ing Agency sources and methods, and we intend to appeal the case. If
we lose that case, this will have a chilling effect on our entire network
of information, including our cooperating liaison services. This is a
precise case where we are in difficulty as a result of the Freedom of
Information Act.
Mr. DRINAN. One last question, Mr. Carlucci, before my time runs
out.
Would your logic mean that the FBI should also be exempt from
the FIOA I
Mr. CARLIICCI. Father Drinan, the FBI will have to speak for itself.
Mr. DRINAx. I know they will speak for themselves, but I am just
asking you. If the logic is that this is chilling to the informants, then
it seems to me that the FBI could use the same argument, and if the
Congress bought it then the FOIA would not apply to the FBI either.
Mr. CARLIICCI. I understand that the FBI does have a problem with
the FOIA, but I am only qualified to speak to the CIA's situation.
Mr. DRINAN. I thank you very much.
Mr. PRErn. Thank you.
Mr. Erlenborn 8
Mr. ERLENBCRN. Thank you, Mr. Chairman.
Mr. Carlucci, I want to thank you for your testimony but admit that
the principal reason for the suggested legislation that you give us-
the one of public perception-is, I think, the weaker of your two
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arguments. It would seem to me your argument about the final quality
of the information which is released after very expensive, time-
consuming administrative procedures is more convincing.
It may be that you have chosen a route that would be more con-
vincing to the majority of this subcommittee-possibly. The reason
I say that is this. I was interested to note on page 5 of your prepared
testimony a statement that you did not read. It is this : "It is in this
spirit that we supported the foreign intelligence provisions of the
privacy of medical records bill considered by your committee."
I do not know why you happened to skip that in your reading, but
it recalled to mind another public perception issue that was before this
committee. We had the medical records privacy bill before the com-
mittee; we had a parade of expert witnesses, one after another of whom
answered the question, "Is the privacy of medical record information
being abused on a widespread basis?" by "No." I was convinced after
all that testimony that we had no reason to enact legislation.
But then we had a public pollster, Louis Harris, come before the
committee, and he told us, in gaging public opinion, he found that
the public generally thought medical records' privacy was being
invaded ; and so therefore this committee acted not to respond to reality
but to the public perception.
So, as I said, maybe you have chosen the most compelling argument
for the majority of the committee-to react to public perception rather
than to reality-but to ask us to pass legislation only because there is
a misconception seems to me to be the weakest of your arguments.
Mr. CARLUCCI. Perhaps I did not make myself clear, Mr. Erlenborn.
I was not referring to public perception. I am referring to a very
specific perception, that is, the perception of people who provide clas-
sified information to the Central Intelligence Agency. These are people
who live, by and large, overseas. many of them in dictatorial societies.
Many of them put their lives or their liberty in jeopardy in cooperating
with us.
Let me create a little scenario for you. sir. Suppose you were a
Cuban, knowing about the effectiveness of the Cuban DGI-the Cuban
intelligence service-and you have some information, let us say, on
the Soviet brigade in Cuba. You are wondering whether you should
pass this to the CIA. You eo to the CIA and sav, "I am very worried
about this. I have seen FOIA requests all over the press. If this infor-
mation gets out, clearly it is going to be traced to me. Can you give me
a guarantee that it won't be revealed?" We say, "Oh, yes. We will give
you that guarantee because we have the two exemptions under the
Freedom of Information Act. But we have to tell you, in all candor,
that if there is an FOIA request on the information that you provide
us, it will be reviewed, line for line, with an eye toward public release,
and the burden of proof on not releasing it is going to be with the CIA.
Assuming we do not have any human error in this process, we will get
home free there, unless we are sued. Then your case will go before one
of 435 judges who are entitled to make their own decision on the
classification."
I ask you, sir, if you were that Cuban, would you cooperate with
the Central Intelligence Agency ?
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Mr. ERLENBORN. I think I would like to pursue this a little further.
Are you telling me it is a misperception but it is not public, it is
private? Some individuals who are potential sources? Or are you tell-
ing me that their perception is correct-that you have to show this to
so many judges and to so many people that it is likely to get out 8
It is either a misperception, public or private, or it is a proper per-
ception. I am really a little confused now from your answer which
it is.
Mr. CARLUCCI. The perception that we are "leaky as a sieve" is a
misperception. We can protect the vast majority of information, and
we try to convince people of that.
Mr. ERLENBORN. That is what I understood you originally to say-
that you wanted relief from a misperception.
Mr. CARLucci. But as I indicated too, in our business perception is
reality. We have to deal with that perception.
Second, I indicated that we do have further problems with the act
which make it very difficult for us honestly to give those guarantees.
We continue to give them; I think we are right in giving them; but
I have pointed out several areas where problems could arise. Fortu-
nately, they have not arisen now, although I do not know how we are
going to deal with these court cases.
Furthermore, let me emphasize that when I say there are misper-
ceptions, and people ask me to demonstrate damage done, it is equiva-
lent to asking us to demonstrate a negative. The universe is infinite
with people who might cooperate with us were it not for the Freedom
of Information Act. Usually they do not tell us. What I indicated in
my testimony was that there were a number of people who told us.
But how many people did not tell us, for every person who told us, is
very difficult to judge.
Mr. ERLENBORN. Another area I would like to explore is this. On
page 14 of your testimony you made reference to the courts where you
say, "The court has, in effect, second-guessed the professional judg-
ment of the Director of Central Intelligence. We hope to reverse this
outcome on appeal." This is on classification.
You made a similar comment a moment ago that would indicate
your understanding of the law that is contrary to mine. That is that
the judge can review the classification of a document and decide
whether it has been classified properly or not.
As I recall, when we worked with this act, we clearly steered away
from allowing the judge to become a classifier, but, rather, we gave
the judge the authority to decide whether something had been classi-
fied within an area of classification authorized under the Executive
order. We do not have any law, as I understand it, but rather an
Executive order that establishes the classification system.
In other words, the judge was not to say, looking at this document,
it might harm the United States or it might not and therefore decide
whether it should be classified, rather, the nature of the document
itself-did it fall within that class that could or could not be classi-
fied? I do not recall the exact language of the act. but there was a real
attempt, in which I think we were sucessful, in drafting the law, not
to allow the judge just to be a second classifier but, rather, to make a
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much broader judgment of what was allowed within .the Executive
order.
I might ask the people on your staff to confirm or correct me.
Mr. CARLUCCI. I think we do have a difference here.
Mr. MAYERFELe. That is quite correct. Our interpretation of the law
is precisely as you articulated-that the legislative history says quite
clearly that the judge is to pay substantial deference to the Agency's
submission in this area. However, the act does say that the court
should conduct a de novo review. He should look at the matter afresh.
It does not define it any further. It was a decision in the Circuit Court
of Appeals for the District of Columbia, Ray and Shapp v. Turner,
in which the court of appeals here extensively, in effect, chided the
district court judges for not doing their job sufficiently well. They
said, in effect-do not rely on the Federal agencies. In fact, the con-
curring opinion said, in effect-the CIA is a bunch of liars anyway;
don't trust them.
On the heels of that paricular decision by the Court of Appeals for
the District of Columbia, there has been some confusion. The courts
have increasingly looked at the documents in camera as the act entitles
them to do. The act does not dictate it should be done, but the courts,
not knowing how to handle these, have looked at the documents.
In the two cases that Mr. Carlucci cited, the judge looked at a mass
of documents, gave us our claims as to most of the material in there,
but picked out a few documents and said, in effect-I just don't under-
stand what CIA ,is saving here. I don't understand why every word
needs to be withheld. The truth is, in fact, that the judge did not
understand.
It is a question that only someone who is expert in the arcane busi-
ness of source protection can judge.
While this particular paragraph would have disclosed the source,
the judge understood that wherever the source's name was mentioned
that should probably be withheld. But wherever there was other de-
scriptive information about the source, it was not that obvious. So, the
court said, in effect, that its not properly classified, and he ordered it
to be released. This is the kind of concern we have with the judicial
process.
Mr. ERLENBORN. Let me again inquire on this. As I recall, the
exemption for the classified document-and I may be wrong here in
my recollection-exempted the document, not just the specific words
within the document. That is what you do for all material-to excise
portions. But as I recall, the exemption was for those documents prop-
erly classified under the system of classification established by the
Executive order.
Mr. MAYERFELD. Quite right. But the act requires that segregable
proportions which are not covered by any one of these exemptions,
including the first exemption-the classification exemption-must be
made available.
Mr. ERLExeoRx. And the judge was deciding that words and phrases
were of that nature 8
Mr. MAYERPELD. Quite right.
Mr. ERLE moRx. I fear that you had a fudge who did not under-
stand the English language. That is certainly not the way this sub-
committee understood the English language.
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55
As I rrecall, I think we labored long and hard to draft this in a way
that would not allow classification without review to give a blanket
exemption to anything the Agency or the FBI would want to keep
under cover, and yet give you a workable system. I think we crafted
that. Good luck on your appeal ; I think you will win.
Mr. MAYERFELD. Thank you.
Mr. ERLENBORN. Thank you, Mr. Chairman.
Mr. PREYER. Thank you, Mr. Erlenborn.
Mr. Evans 4
Mr. EVANS. Thank you, Mr. Chairman.
I believe that this past spring the testimony that you presented at
that time to the House Intelligence Committee stated that you be-
lieved there was less of a need today for public disclosure because. there
is now a mechanism for formal congressional oversight of the intelli-
gence community. And today earlier, as I understood you to say, you
do not want to further limit congressional oversight in regard to the
FOIA.
Could I ask, then, what is the position of the CIA as far as congres-
sional oversight of your Agency is concerned $ Are you wanting the
oversight reduced in terms of numbers of committees or not in terms
of numbers of congressional committees?
Mr. CAluuccl. Mr. Evans, I think your confusion on this point is
understandable given the publicity that has been, attached to the ex-
ecutive branch's position on the Hughes-Ryan amendment. That is a
specific amendment that applies to what are called "special activi-
ties"-covert actions or operations-that is to say, secret operations
that are designed to influence events in a foreign country.
If the CIA is to engage in these activities, the law requires a Presi-
dential finding, and it requires us to brief appropriate committees of
Congress, including the House and Senate Foreign Relations and
Foreign Affairs Committees.
That amendment has been interpreted to encompass eight commit-
tees. It is our position that eight committees is too much. It is really
the Congress decision on how to cut it down, but we think revealing
special activities to up to 200 Members of Congress, in effect, no longer
makes it a covert action.
That only applies to a very narrow portion of our activities.
Mr. EVANS. And you are only seeking that reduction of congres-
sional committee involvement in regard to the Hughes-Ryan
amendment 9
Mr. CABrucci. To Hughes-Ryan alone.
Mr. EVANS. I see.
Mr. CARLUCCI. It does not apply to any of our other activities where
very rigorous oversight is exercised by both the select committees in
the House and the Senate. Nor does it apply to our appropriations ac-
tivities which are subject to the same review process as any other
agency.
Mr. EVANS. I see. I appreciate that clarification.
Also, on page 25 of your statement of today, you noted that the
requests cost approximately $900 each to process; you collect an aver-
age fee of approximately $2 per request. Have you sought a more real-
istic fee in regard to the Freedom of Information Act administration
as you are carrying it out 4
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Mr. CARLUCCI. Of course, the law only allows us to charge for search
and copying. It does not allow us to charge for the review process
which, particularly in an organization like the CIA, is the most com-
plicated aspect of particularly Furthermore, the law requires that when the re-
quest is in the public interest there shall be no charges. Most of the
requests to the CIA seem to fall in the category of public interest. On
two occasions when we have challenged that, judges have ruled against
us.
So, we do not feel that upping the fee would be a particularly helpful
remedy in terms of the kinds of problems that we have laid out.
Mr. EvAxs. I see.
Mr. CmmuccI. Let me emphasize once again that we really are not
seeking a total reduction or a total exemption from FOIA. All we are
seeking is an exemption for specified kinds of information relating to
our sources and methods, our most sensitive information-from whom
you got the information and how you got it, which has very little re-
deeming public value. We are not seeking any kind of across-the-board
cutback.
Mr. EvAxs. OK.
You have stated that you receive somewhere in the average of about
18 freedom of information, PA, and Executive order requests each
day. What really would be the actual impact upon your workload here
in terms of whether you were given additional exemptions from the
Freedom of Information Act?
Mr. CARLUCCI. We estimate that the exemptions we have suggested
would cut down our workload by approximately 15 to 20 percent.
Mr. EvAxs. That would not seem to be a tremendous reduction.
Mr. CARLUCCI. That is correct. And that is why I emphasized to
Father Drinan that we are not seeking sweeping exemptions from
FOIA; we are seeking limited exemptions to protect our most sensitive
information.
Mr. EvAxs. Thank you.
Thank you, Mr. Chairman.
Mr. PREY=. Thank you.
Mr. Kostmayer?
Mr. KOSTMAYER. Thank you.
Mr. Carlucci, last April you testified before the House Intelligence
Committee that as a result of President Carter's Executive order on
declassification that you were required to do a certain amount of work.
I think you said-correct me if I am wrong-at that time that 52
percent of the administrative burden that you had to undertake came
as a result of the President's Executive order and of the Privacy Act
itself. Do you recall that? Is that correct?
Mr. CAR trcci. In terms of requests, Privacy Act and Executive
order requests do outnumber FOIA requests. In 1978. we had 1,608
FOIA requests, 2,136 Privacy Act requests, and 428 Executive order
requests.
It is very difficult for me to quantify the workload because we do not
know how much workload is associated wit1k any one request. As I
indicated, we have had one person working full time for more than a
year on one request. I think it would be virtually impossible to quantify
the workload, but let me ask our experts.
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57
Mr. OwENS. The Executive order provides us with about 6 percent
of our workload.
Mr. KOSTMAYER. And the Privacy Act 4
Mr. OwEws. 52 percent.
Mr. KosTMAYER. So that makes 58 percent total?
Mr. OWENS. Yes.
Mr. KOSTMAYER. So, that leaves 42 percent as a result of FOIA. Is
that right?
Mr. CARLUCCI. Yes, sir.
Mr. KOSTMAYER. Which does not seem to be as much as you indicated.
We ought to recognize what we are dealing with here. Of the workload
you indicated, only 42 percent is as a result of these problems you are
having. Is that right?
Mr. CARLUCCI. That is correct, in terms of FOIA strictly. But, of
course, the Privacy Act and Executive order are companion pieces.
Mr. KOSTMAYER. Are you seeking amendments to those as well Y
Mr. CARLUCCI. No. I indicated that we would continue to be respon-
sive to first-person requests.
Mr. KOSTMAYER. I just wanted to put that in perspective because
I think it reduces that figure-it seems to me-rather substantially.
Are you not putting your Agency in the position of both judge and
jury when you make these decisions H If the citizen feels aggrieved and
requests this information, is it not legitimate to say that this is a mat-
ter which should go to the courts, to a third party, to an objective
party, and that, after all, your Agency or any agency is not really in a
position to make this kind of a judgment, that that is inherently a
conflict of interest? That is really fundamental to our system. You
are hardly going to be able to view it, I think, in an impartial, objective
way.
Mr. CARLUCCI. Certainly, Mr. Kostmayer, we try to view it in an
impartial way, and I think the record will show that we have been
responsive to requests. We have a backlog, as I have indicated.
But, once again, bear in mind that we are dealing with extremely
sensitive issues here, and as Mr. Mayerfeld has indicated, an arcane
art-if you will-of source protection. I, myself, have been astounded
since I have been involved in the intelligence business these past 2
years at how a sophisticated counterintelligence service can pinpoint a
source from a seemingly innocuous piece of information. It is an
extremely sophisticated business, and often lives are at stake.
Hence, it is our judgment that we must prevail in terms of protecting
our sources. Otherwise, an intelligence organization cannot function.
Without the ability to protect its information, an intelligence organiza-
tion might as well not exist.
Mr. KOSTMAYER. But in a democracy, questions are going to arise,
are they not $ There are possibilities in which your Agency could be
in the wrong. And who is to determine whether the citizen is right or
the CIA is right 4 The CIA 8
Mr. CARLUCCI. We have no objection to judicial review of the validity
of our classification. We have questions with a de novo judicial review.
Also, as I indicated, we have very rigorous congressional oversight,
and our committees can look into the matter.
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08
But getting back to the fundamental point of whether an intelli-
gence organization is entitled to maintain its records secret, the
Supreme Court addressed that in the Snepp decision.
Mr. KOSTMAYER. I do not disagree with you, sir, by the way. I think
that you are entitled to maintain them, and I think there are provisions
to review documents in camera to determine the applicability of the
exemption. I am as appalled as you are at these recent publications
that you have spoken about. It seems to me that there are provisions
in the law which would protect your secrecy, and I think that needs
to be protected. But that does not mean that you cannot go before a
court.
Mr. CAR 4uccI. No. We have just cited two instances of court deci-
sions which, if upheld, will be extremely damaging to our intelligence
operations.
Mr. KosTMAYER.;In your judgment.
Mr. CARLUCCI. In our judgment.
Mr. KosTxAYzi. Not in the judgment of the courts, though.
Mr. CARLUCCi. Not in the judgment of the courts, no.
Mr. Kosmi &ym. That is how we operate in this country.
Mr. CARLUCCI. We have been charged, sir, with conducting an effec-
tive intelligence operation, and part of that operation
Mr. KosTMAYER. That has to take second place to the constitutional
protections which all of us have in this country. The CIA and every
other Government agency is going to be subject to rigorous tests in the
courts of the country. Sometimes those tests will be met by your
Agency; on other occasions they will not.
Mr. CARLUCCI. The courts are interpreting laws passed by the Con-
gress, and we are before you, sir. telling you the problems created by
those laws in terms of the impediments that they will create for the
effective functioning of the Central Intelligence Agency.
Mr. KoSTmAYER. Even in response to that, apparently these problems
have not been created. Apparently you have not been required to
release large amounts of information. It is rather rare, as you have
indicated yourself. You almost always win these cases.
Mr. CARLUcci. Sir, I have indicated to you several danger areas, and
I have indicated to you a very serious problem that has arisen from
the courts, and I have stated as clearly as I know that the perception
of the erosion of our ability to protect our sources and methods is a
most serious problem in our intelligence organization today.
Mr. KOSTMAYZR. But it is an incorrect perception, nevertheless.
Mr. CARLUCCI. It is a substantially incorrect perception. It will be
completely incorrect if we are able to deal with some of the problems
that I have laid before you today.
Mr. KosTMAYER. But you think we should base this decision on an
incorrect perception.
Mr. CARLUCCI. I think that we have to base this decision on the
reality in which we live, and the world of perceptions in the intelli-
gence business is the world of reality.
Mr. KosTMAYER. I think what you are saying-and I disagree with
you, of course-is that we ought to base it on an incorrect perception
and we ought to base it in the eyes of people who do not share our
values or our feelings about these institutions. I do not think that is
the way you ought to look at it, but I recognize that.
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What you are saying, in short, is that in these cases where the Gov-
ernment feels the court is wrong, you ought to be exempt from their
ruling.
Mr. CARLUCCI. No, sir. I have laid before you some problems which
exist, and I have suggested a solution which is one of carefully crafted
partial relief from the act; I have not suggested total exemption; I
am not appealing specific court cases to the Congress; I am indicating
to the Congress a series of problems that we have with the act which
will, and are impeding the effectiveness of the Central Intelligence
Agency.
Mr. KosTMAYER. Would the passage of your amendment make these
decisions not subject to court-review, or would they still be subject to
court review ?
Mr. CARLUCCI. These two particular decisions do involve sensitive
sources in the foreign intelligence area. Therefore, I believe those files
would have been exempted under the amendment, but let me defer to
counsel on that.
Mr. MAYERFELD. The question is whether we are seeking with this
proposed amendment exemption from judicial review. We are not.
Any item which we seek to withhold would still be subject to judicial
review.
Mr. KOSTMAYER. So, even if the amendment is passed, the court could
overrule it.
Mr. MAYERFELD. On a specific item of information, absolutely.
Mr. KOSTMAYER. Thank you, Mr. Carlucci.
Thank you, Mr. Chairman.
Mr. Piu a. Thank you.
Mr. Weiss?
Mr. WEISS. Thank you, Mr. Chairman.
Mr. Carlucci, in response to a question that was put to you by the
chairman, you gave what I thought was a very carefully considered
response. The question was, does the administration support your
proposed amendment? As I recollect your answer, you said the OMB
had checked your testimony and told you that the testimony was not
in conflict with administration policy. Is that an accurate restatement?
Mr. CARLUCCI. I think the phrase was, "not inconsistent with the
President's program," which has been a standard OMB phrase for
years, indicatinn that legislative proposals are acceptable.
Mr. WEISS. All right. That, inferentially, suggests that, in fact, the
administration may very well be supporting this proposal. The ques-
tion that I have-because I have a recollection of having read some-
time within the course of the last 2 or 3 weeks a statement attributed
to the Attorney General, Mr. Civiletti. who supposedly expressed his
opposition to your proposal-is this : Has this legislation, in fact, been
the subject of discussion between the CIA and the Attorney General?
Are you aware of any position, privately or publicly, taken by the
Attorney General which, in fact, expresses lack of support for your
amendment?
Mr..CART,UCCI. My understanding of the Attorney General's position
is that he has not yet made a decision on whether he will support or
opnnse this amendment.
We have made the amendment and my testimony available to the
Department of Justice. We have met with them. They have asked a
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number of questions. They will have to speak for themselves. They
have not indicated that they would be supportive of the amendment.
All they have said is that they have not reached a decision.
Mr. WEISS. Have they, indeed, not expressed certain misgivings
about the amendment?
Mr. CARLucci. They have raised a number of questions, but I do not
think it would be appropriate for me to speak to the Department of
Justice's position.
Mr. WEISS. I just want to be sure that our records, in fact, are com-
plete, at least to the extent of not letting it appear that, in fact, the
administration has already signed off on this amendment, which, in
fact, they have not.
Mr. CARLUCCI. The administration has indicated that the amend-
ment is consistent-that the testimony is consistent with the Presi-
dent's program.
Mr. WEiss. But you do not suggest to this subcommittee that that
means that the administration supports your amendment?
Mr. CARLUCCI. I think we are talking about a distinction without
a difference.
Mr. W mss. I would be happy, though, if you gave me a yes or no
answer as to what you are suggesting.
Mr. CARLUCCI. The administration has indicated that this amend-
ment-this testimony is consistent with the President's program.
Mr. WEISS. I thought that your earlier formulation was that it was
not inconsistent.
Mr. CARLUCCI. Or not inconsistent. Once again, I think we are talk-
ing about a distinction without a difference.
Mr. Wmss. For one who lives by the word, as we do on this side of
the table and you do on your side of the table, I would think that you
would be concerned about the semantic differences involved.
Let me ask you about some substantive aspects of the existing law.
Again, as preface, my understanding of your testimony was that
the reason that the CIA believes it essential to have us adopt the
amendment that you are suggesting is that the CIA is predominantly
concerned about the disclosure of confidential sources and of confi-
dential operations. Is that correct? I am talking about methods used
by those sources or by your agents in relation to those sources.
Mr. CARLUCCI. We are concerned about the difficulty of gathering in-
formation, about the difficulty of creating a relationship of trust with
potential sources who constantly indicate to us their lack of confidence
in the CIA's ability to hold their information inviolate and frequently
cite the Freedom of Information Act as' a reason.
Mr. WFass. Tell me again what specifically your amendment will
do. I thought that you had responded to a number of the questions--
that what you were addressing was a very narrow area primarily
dealing with confidential sources and confidential methods of opera-
tion.
Mr. CARLUCCI. That is correct.
Mr. WEISS. That is correct? OK. Now, is it not a fact that section
552(b) (7) right now allows investigatory files to be withheld in those
areas where it would disclose the identity of a confidential source and
confidential information from a confidential source? Does that not
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really already provide you with exactly the kind of protection that
you are seeking in this matter $
Mr. CARL uccI. Let me ask Mr. Mayerfeld to answer that.
Mr. WEIss. Mr. Mayerfeld 4
Mr. MAYERFEL.D. Mr. Weiss, the (7) exemption refers to law enforce-
ment records, and the CIA is not a law enforcement agency; so, except
in very rare circumstances that has no applicability to us at all.
Mr. WEISS. Oh. So, you are not considered, for the purposes of that
exemption, to be covered? That does not apply to the CIA?
Mr. MAYERFELD. It only applies in one very narrow area, and that is
the area which-the legislative history of the act points out that there
are certain administrative actions which fall within the meaning of law
enforcement in that exemption, and that is specifically the investiga-
tion of the suitability of employment applicants and similar activities
of that nature.
The information that we seek to protect under our source protec-
tion responsibility-what we usually invoke is the first exemption,
which is classification, and the third exemption, which is information
otherwise protected from disclosure by statute. As you know, the Na-
tional Security Act gives the Director of Central Intelligence the re-
sponsibility to protect intelligence sources.
Mr. Weiss. There is another exemption under (7) which says,
"where investigative techniques and procedures might be disclosed."
Are you saying that that exemption also does not apply to the CIA?
Mr. MAYERFELD. I ain saying that-again, except in this very narrow
area of investigations dealing with the suitability of applicants and
employees and so forth. But the general answer to that is correct-it
does not apply to us.
Mr. WEISS. Suppose, in fact, those two subsections which I have
cited, or the FOIA were amended to make it very clear that, in fact,
those two provisions apply to the CIA. Would that satisfy the needs
of the CIA 8
Mr. MAYERFEr.D. No, Mr. Weiss, I do not think so. We, in effect,
have already existing exemptions that will protect that kind of in-
formation, which is the classification exemption and our statutory
exemption.
Mr. WEIss. So, what you are saying is this. Let me see if I understand
it. What you are saying is, even though the specific language that I
have quoted to you out of (7) does not itself apply to the CIA, pro-
visions in clauses (1) and (3), in fact, encompass-even though they
may not spell out specifically-the very exemptions that are included
in (7) so that the CIA would receive the benefit of (7) through (1)
and (3) ?
Mr. MAYEaFEI.n. Essentially that is correct. There are a couple of
distinctions there, but essentially that is right.
Mr. WEIss. OK. But if that is true, I am now confused, and I will
get back to the basic question which I apparently misaddressed
through (7). If you already have the protection under (1) and (3),
what more are you going to gain by what you are asking for in this
amendment if, in fact, what you are seeking to protect is confidential
sources and operations and procedures?
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Mr. CARLUCCI. When we deal with a potential source, particularly
when it is in a denied area, Congressman Weiss, they are very insistent
on the protection of their information. The same thing applies to co-
operating liaison services. Generally, the intelligence technique is to
assure them that the information will be very closely held on a need-
to-know basis- it will not get outside of CIA. In fact, most of them
insist that it not get outside of CIA.
In order to give them that assurance, we would like to have the
operational files exempted from the search and disclosure process. As
I indicated earlier, when we have to say to them, "Well, we will put
your information in a decentralized file, and we will give it protection,
but yshould understand that should an FOIA request come in we
will you
have to review it line for line for possible declassification, and
if we then turn down the FOIA request we are subject to litigation,
and the judge can conduct a de novo review," that is hardly reassuring
to somebody whose life or liberty may be at stake.
I am saying to the subcommittee that, under this exemption, we
give out very little information of public significance. If that is the
case, what conceivable objection could there be to granting us an
amendment saying, "You don't have to search these files?" If we had
such an amendment, we would be able to give a categorical assurance
to our cooperating sources, and that would change the harmful per-
ception that exists today.
Mr. W miss. Then, again, if I understand you correctly, if ou had
that Dower, then the response that you would have had to* give to
Mr. Kostmayer's question is that, indeed, that decision would not be
subiect to judicial review. Is that not right?
Mr. CARLUCCI. I think what Mr. Mayerfeld was saying was that even
when we deny records we can be challenged in the court under any
circumstances. including our amendment.
Mr. Weiss. The refusal to undertake the search itself could be chal-
lenvred-is that right?
Mr. MAYERFELD. No, it is not, as I envisage it. The act itself would
provide that certain files, if they are properly designated by the Direc-
tor of Central Intelligence, would be immune from the process of
search.
Mr. WEIRS. So that, in fact, there would no longer be judicial
review-is that not right ?
Mr. MAYERFELD. Of a disputed item of information, there would
continue to be.
Mr. WEIRS. Again, maybe I am mistaking it. I understood Mr. Kost-
mayer to ask you if, in fact, the amendment that you are proposing
were adopted by the Congress. would then obviate any judicial review.
And your response, as I recall it, was that, no, it would not obviate
judicial review.
As I understand Mr. Carlucci the proposed amendment, in fact,
would provide a total exemption from even searching the files to see
whether the requested information is there because it would fall within
a totally exempted area. Now you are telling me that in those instances,
in fact. you world make the blanket decision given to you under the
authorization of the amendment you are suggesting. You would not
have to search that, and nobody could challenge that decision because
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the statute said you would not have to search, and there is no argu-
ment possible. Is that not right ?
Mr. MAYmmLD. The court would still have the right to check the
veracity of our claims-"Is this particular document responsive to this
request, indeed, in such a file designated? Was this file properly so
designated?" That is subject to judicial inquiry.
If the court, however, determines that the file in which this docu-
ment was contained has been properly designated by the Director of
Central Intelligence, and indeed this is where the document resides,
yes, you are correct-that closes the judicial review.
Mr. WEISS. OK.
Now, let me turn to another area. Mr. Carlucci, you said that your
amendment would not apply to completed intelligence efforts. Is that
right ?
Mr. CARLUCCI. That is correct, sir.
Mr. WEISS. OK. Just to begin, I have tried to find in the proposed
amendment that has been given to us the language which, in fact, pro-
vides that distinction as between ongoing investigations and completed
intelligence efforts. Can you indicate what language provides for the
distinction?
Mr. CARLUCCI. It is there by omission. Those things that are not
covered in the proposed amendment would be subject to the FOIA
process, and our proposed amendment is drafted to include only sensi-
tive sources and methods.
Mr. WEISS. Let me see if we can do it together, because I want to
be sure that, in fact, I understand what you are suggesting. Starting
at line 9 on pa 1, it says, "In the interests of the security
the Agency shall be exempted from the provisions of any law which
require the publication or disclosure of the organization, functions,
names, official titles, salaries, or number of personnel employed by
the Agency. In furtherance of the responsibility of the Director of
Central Intelligence to protect intelligence sources and methods * * *"
and then it goes on to say that you are going to say that you are
also going to be, "exempted from the provisions of any law which
require the publication or disclosure, or the search or review in con-
nection therewith, if such files have been specifically designated by
the Director of Central Intelligence to be concerned with : The de-
sign, function, deployment, exploitation," et cetera, "special activities
and foreign intelligence or counterintelligence operations; investiga-
tions conducted to determine the suitability of potential foreign in-
telligence or counterintelligence sources; intelligence and security
liaison arrangements or information exchanges with foreign govern-
ments or their intelligence or security services;" and so on.
Suppose you had a request about a case, as you did in some prior
cases which became the subject of some dispute and publicity, dealing,
for example, with the investigation of operational support for re-
cruitment-Project Resistance, for example-when you had completed
that entire body of work-that report included methods of intelligence
gathering or counterintelligence gathering, would those be eligible
for disclosure ?
Mr. CARLUCCI. I am not sure of the project that you are talking
about. What we would be referring to in this amendment would be
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foreign intelligence operations where we have cooperating sources and
methods who would be providing us with information in confidence.
There is nothing in the amendment which you read which pertains to
the finished intelligence product, that is to say, an analysis of Iran,
Afghanistan, or India. That would not fall within the category of this
amendment. Frankly, I am not familiar with the project that you
mentioned.
Mr. WEISS. I have a number of files which contain materials which
were the subject of a series of intelligence reports and studies and in-
quiries undertaken by the CIA, most of which were ultimately dis-
closed on the basis of'FOIA reports without the necessity of having to
go to court. That is, they were initially refused, and then on the basis
of your own internal review processes the determination was made
that, in fact, they could be disclosed. The specific one that I was talking
about was the CIA documents on Project Resistance and Merrimack,
1966, 1975-1.987 pages. The documents in this file contain a number
of discrepancies from or additions to the account of the report of the
projects in the Rockefeller and Church reports. These relate to the use
of informants in a project known as Resistance. These relate to the
scope of resistance, the use of Army counterintelligence information in
"Resistance" reports, the proposed expansion of Merrimack in 1968,
et cetera. OK ?
Question : Would the work file-the completed work-of that Proj-
ect Resistance and Merrimack study-could that be disclosed after
the study had been completed ?
Mr. CAluuccl. If I understand the project that you were talking
about, it was initially released by the Rockefeller Commission, and ap-
parently subsequent FOIA requests developed additional information.
Mr. WEIss. Discrepancies, et cetera-right-and additions.
Mr. CARLUCCI, Anyone writing in with a first-person request, under
our proposed amendment, would have that request answered to the
degree that the material could be declassified.
Mr. WEISS. OK. But suppose, in fact, we were not asking a first-
person request. Suppose the New York Tim es, deciding that it had
gotten word of this Project Resistance in Merrimack and knew that
that effort had been completed, and it wanted to get the total file, could
the New York Times, on the basis of an FOIA request. get that infor-
mation from the CIA if your amendment were adopted?
Mr. CARLuccI. There is, of course, nothing that would prevent us
from releasing information under the amendment.
Mr. WEISS. Under the proposed amendment would you be obliged,
or could you, in fact, refuse to release it?
Mr. CARLUCCI. We are dealing in hvpotheticals, but this would de-
pend on whether it was put into the file designated under the amend-
ment you read. That is to say, if those files were designated sensitive
files pertaining to foreign intelligence or counterintelligence collec-
tion, so to speak, then they would not be subject to the search and dis-
closure process.
I am not certain, from the description that you give, that those files
would come under that cater!ory. But, if I may, let me amplify on that
because the historical files that we are talking abort, of course, came
out in a different era-an era before we had the Intelligence Oversight
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Board, before we had the very rigorous congressional oversight that
we have now. I would have no doubt that any such operation would
become immediately known to both the select committees and to the
Intelligence Oversight Board; and, indeed, we have had cases where
the Congress might determine, under Senate Resolution 400, so to
speak, that information should be made public. But there is a process
that is available under the oversight mechanism.
Mr. WEiss. But that is different. Now we are talking about congres-
sional oversight, and hopefully congressional oversight will always
be strong and vigorous. But that was the assumption, or the expecta-
tion, in those years when, in fact. the CIA was unhappily going off in
directions which it ultimately decided were the wrong directions-
never mind the country deciding they were in the wrong directions.
The purpose of the FOIA-at least as I understood it-is to pro-
vide citizen safeguards in addition to congressional safeguards. But
what you are saying now-as I understand it-is, "well, we have a
sort of fail-safe mechanism because, even if FOIA would not allow
you to get that information, congressional oversight itself is strong
enough to fill the gap."
I asked the question because I did not-and I still do not at this
point-clearly understand exactly what is intended by the amendment
that you offer. I gather that, really, it has much broader ramifications
than just what you have described; and I am not suggesting that you
are intentionally misleading this subcommittee. What I am suggesting
is that the ramifications of the exemption that are built in the amend-
ment really require a great deal of thought.
The questions that I asked-and I think that probably we could ask
many others along those lines-indicate that this is really a very com-
plex area.
For example, I had thought that there was, in fact, a dual test,
that is, that an applicant was entitled to receive that information
either if it was an individual seeking information about that individ-
ual's own involvement or, even if it was not an individual, if the
matter did not fit within the four categories that you outlined. But as
I listened to your response, the impression that I got was that it would
still have to be an individual seeking the information and, in addition,
it would have to be outside those four exemptions. Maybe you can
clarify that for us.
Mr. CARLUCCI. No; that is not correct, Mr. Weiss. An individual seek-
ing information on his own file would undergo the FOIA review and
disclosure process, even if that file were in one of these categories.
I said that I was not able, from the information you had given me, to
judge whether that particular file would be placed in one of the cate-
gories under the amendment. If it were, I indicated that it would not
be subject to the disclosure process in toto, but we would still continue
to respond to first-person requests.
Mr. WEISS. Suppose you had the kind of situation that developed
with the mind-bending experiments with drugs, and that study or
that effort had been completed, and, again, it was not just an individ-
ual or a family member of that individual who sought information on
efforts or personal involvement, but, again, the New York limes
decided that it would like the entire files on it. After your amendment
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was adopted, would that " study be. available t Could anyone who
sought. that get it ?
Mr. CARLUCCI. First of all, let me say, Mr. Weiss, that no such
experimentation will take place as long as Admiral Turner and I are
in that Agency, so we are dealing very much with a hypothetical
here.
Mr. WEISS. You know, Mr. Carlucci, on that point, the gentlemen
who preceded you, when they took those positions and when they
held those positions, were thought to be every bit as high minded,
and noble, and patriotic American citizens as you are, and yet all
kinds of terrible things happened during their directorships, and I
think the reason for our concerns-the reason for FOIA-is that,
without questioning ,your motivation or your American citizenship
and commitment, terrible things can happen, and that is why we need
the protections of the law.
Thank you, Mr. Chairman, I think you have been more than
generous.
Mr. PRmm& Do you wish to respond ?
Mr. CARLUCCI. I just want to indicate that, once again, we are talking
about problems that existed in an era long before the kind of over-
sight mechanisms that we have today were in place.
Mr. PREYER. I have just a couple of questions.
You mentioned that the Freedom of Information Act is a focal
point of the allegation that the CIA cannot keep a secret, and you also
mentioned other problems in that connection in creating this sort of
"mood" or aura that you cannot keep secret these leaks and these
published books and magazine articles by former agents. Is there any
way in which you can measure the impact of the Freedom of Informa-
tion Act on the creation of that mood? Why is it the focal point rather
than these books, articles, or leaks? Is it possible the Freedom of
Information Act is a victim of the other?
Mr. CARLUCCI. They are all serious problems, and, as I indicated in
my testimony, we are trying to deal with them. The Snepp decision
yesterday will be helpful in that connection. We have taken a series
of steps, which I would be glad to submit for the record, to tighten
up on our own internal security procedures.
Mr. PREYER. Without objection, they will be included in the record
at this point.
[The material had not been received at the time of printing.]
Mr. CARLUCCI. I cannot measure in objective terms, but I can tell you
in subjective terms that, as a result of looking at reports from posts
all over the world, as a result of travel, as a result of my own contact
with other liaison services, the Freedom of Information Act has be-
come the' focal point. It has become the svmbol-perhaps unfairly-
but it really has taken on a larger-than-life role. Perhaps that is be-
cause it is under consideration in some other countries-I do not really
know why. Perhaps it is because there are so many articles that come
out that are labeled, "Freedom of Information Act," that people
around the world think that anybody in this country, or any other
country for that matter, can obtain whatever information they want,
willy-nilly, under the Freedom of Information Act. But that percep-
tion is a fact.
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67
Mr. Pii . YER. I think that is simply a misperception that all you have
to do is file a request and it is immediately revealed.
You cited in your testimony the corporate officer-I think you said
he had been a former Cabinet member here---
Mr. CARLUCCI. Yes, sir-a verb respected one.
Mr. PREYER. He said something like, "I would not cooperate with
you as long as the Freedom of Information Act exists." You would
think that a man like that would understand, if it was put to him, that
the Executive order provides that confidential information from for-
eign governments or which would reveal foreign intelligence sources
is of a classifiable nature and thus is exempt under the Freedom of
Information Act first exemption. At the present time under that Exec-
utive order, "foreign government information may remain classified
virtually in perpetuity." Why is that not a solid argument to use with
an intelligent man like a corporate executive that this is not going to
be revealed? Is your point the fact that that is subject to judicial
review ? Is that where that argument breaks down as being a good argu-
ment to destroy this perception ?
Mr. CARLUCCI. Let me say that I did try to convince my interlocutor
that we could protect information, but he was not to 6 convinced.
And my point in citing that is to indicate that it is difficult to convince
as sophisticated an individual as this one-and he is a very sophisti-
cated individual-so it is virtually impossible to convince a relatively
unsophisticated person in another country whose life might be at stake.
Judicial review is a problem, yes. I indicated four areas that we
thought were problems for us. One is the possibility of human error,
which I recognize you cannot do a lot about. But it is a peculiar prob-
lem in the Central Intelligence Agency where we are so decentralized
and operate on a need-to-know basis that really only one individual-
the man with the substantive knowledge=-can make* the decision.
I indicated that the problem of misleading the public through par-
tial releases-the Tom Dooley case-is a real one. I also indicated the
counterintelligence problem, that is, the mosaic problem. We do not
know what the requester actually holds, and, indeed, foreign intelli-
gence services would be very foolish if they were not availing them-
selves of the Freedom of Information Act. The most innocuous piece
of information can sometimes be the final piece to the puzzle.
So, those, coupled with judicial review, do give rise to concern.
Let me emphasize=goine back to the point that was made on the
Democratic side of the bench-that by judicial review I mean de novo
review of the classification; I am not talking about total exemption
fro
m judicial review.
Mr. PRETER. Let me ask this. I guess this is the real thrust of what
we are working toward here. Is there not something short of total
exemption from the Freedom of Information Act that would satisfy
your problem with the perception of foreign agents ? For example, a
more limited proposal such as this one in section 222 of the new pro-
posed charter-Senate bill 2284. This provision says, under "Coopera-
tive Arrangements" :
Notwithstanding the provisions of this title, no ageencv, Federal officer or em-
ployee may be required in connection with any proceeding under section 221 to
diselose to a court information concerning any cooperative or liaison relationship
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that any agency of the U.S. Government may have with any foreign government
component thereof: Provided, That the Director of National Intelligence has
determined that such disclosure would jeopardize such relationship.
Would this not satisfy their perception ?
Mr. CAiu uccI. That relates to certain processes under the act for the
collection of intelligence on Americans under certain safeguards. The
problem arises with regard to cooperating with a liaison service who
would be unwilling to give us information if that information is sub-
ject to release to a court. Hence that particular provision was written
into the charter proposal.
Frankly, Mr. Chairman, I think we have made a limited proposal.
We are far short of asking for total exemption from the act. I indicated
that our workload would only be lightened by some 15 to 20 percent by
our proposal. All we are asking for is protection from the search and
revelation of ways in which we collect information and from whom.
The vast majority of material in the CIA is finished intelligence or
first-person requests, and that would continue to be subject to the
Freedom of Information Act process.
So, we think now we have our request down to the absolute minimum.
Mr. PREYER. Are there any burning questions that any of the rest of
you have ? I think we will need to recess shortly.
I think this has indicated that this is a very complex subject, and
I am glad we have begun the dialog on it. I think, as we all think
about it,. if we come up with some thoughts on it, we will want to go
into it further.
Mr. Kostmayer ?
Mr. KOSTMAYER. I have one brief question.
Mr. Carlucci, the Executive order-the FOIA provides an exemp-
tion for information treated as classified under the Executive order.
Classification standards are contained in the new Executive order. If
there was a need for greater secrecy in the CIA for certain categories
of information, should they not be included in the Executive order, or,
indeed, are they ?
Mr. CARLUCOI. The problem, Mr. Kostmayer, is not classification
standards. The problem is the review and release process for certain
highly sensitive files, and changing the classification standards would
not deal with that problem.
Mr. KosTMAYER. But the amendment gives to the Director the dis-
cretion to categorize or to classify this information. It is then, by that
definition, by virtue of the fact that it has been so classified, that you
are able to withhold it. So, it is indeed a matter of classification rather
than review, is it not ?
Mr. CARL uccI. We are not really talking about a classification in the
security sense. We are talking about designating certain files as sensi-
tive files in terms of the amendment, and those files would then not
be subject to the FOIA process unless-to get back to Congressman
Weiss' point-they were subject to first-person requests.
Let me say, with regard to the designation of these files, I would be
more than willing to indicate to our oversight committees which
files-which general categorical files-we have exempted consistent
with this amendment.
I would emphasize the point that I made to Father Drinan, that we
are not seeking any exemption from oversight. All we are seeking-
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very sincerely here-is to be able to give to our cooperating sources
the reassurances necessary to allow us to conduct our mission efectively.
Mr. KOSTMAYER. Did you request when the Executive order was
being drawn up that this be included?
Mr. CARLUCCI. I was not in the Agency at the time, but it is my
understanding that we cannot deal with this problem through the
Executive order because the problem was created by the 1975 amend-
ments to the'Freedom of Information Act.
Mr. KOSTMAYER. If there is a situation in which the Director has
categorized or classified information, it is my understanding then that
the court can only go so far as making a decision or judgment as to
whether or not he has acted properly in so defining it. Once they have
determined that the Director has, indeed, properly in that cats oriza
tion or classification-that they have made an affirmative judgment
that he has acted properly-that is the end of the line as far as the
judicial review process is concerned. Is that right?
Mr. CARLUCCI. That is right.
Mr. KOSTMAYER. And, of course, if the court determines that he has
acted improperly, they would have the right to order that that infor-
ination be disclosed.
If, indeed, they do determine that he has acted properly, the de novo
review procedure seems to me to be difficult to apply without the court
learning of the substance of the information that has been classified.
Is that right or wrong? And how is that done?
Mr. CARLUCCI. Review for the validity of the classification would
not necessarily require an exhaustive study of the information. But
we would certainly be willing to provide the information for an in
camera review.
But let me just say here, Mr. Kostmayer, that to understand the
complexities of the release issue that a judge would be dealing with,
he would, in effect, have to understand our entire operations in a coun-
try; he would have to understand the method of operating and the effec-
tiveness of the counterintelligence service of that country; he would
have to understand the movements of a particular agent; he would
have to understand how all of the reports submitted by that agent
would be pieced together.
Mr. KOSTMAYER. In determining whether or not the Director had
classified the information correctly ?
Mr. CARLUCCI. In determining whether or not the information should
be released without doing damage to the sources and methods-yes, sir.
It is a very complicated process.
Mr. KOSTMAYER. What if the judge determines that the Director has
acted properly in classifying this information and therefore it cannot
be disclosed, but he determines in his review that the laws have been
broken by the Agency? What is he to do then ?
Mr. CARLUCCI. Certainly if he determines that we have broken the
law in any way, he can take remedial action. I assume he can issue
an injunction. I would defer to counsel on this.
Mr. MAYERFELD. I do not think that issue has ever been decided.
Your question is, if an item or document is properly withheld under
the exemption, does the court then have the authority to release that
information because he has determined that the action described
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70
Mr. KosrMAYER. I am not asking if the court has the authority to
do that; I am asking what is the court to do $
Mr. CARLUCCI. In other words, if the document reveals that the CIA
has done something illegal ?
Mr. KOSTMAYER. Right.
Mr. CARLUCCI. Certainly if it revealed that we were doing anything
illegal in the process of pulling together that information, that il-
legality would be revealed either to our Inspector General, our Gen-
eral Counsel, the Intelligence Oversight Board, or one of our parent
committees on the Hill. Certainly if it came .to my attention, I would
be required
Mr. KOSTMAYER. Surely-if it came to the attention of the commit-
tees on the Hill.
Mr. CARLucci. No-if it came to my attention. or if it came to the
attention of the vast majority of employees in the Agency, I am con-
vinced that it would be revealed.
Mr. KOSTMAYER. With all due respect, Mr. Carlucci, the record of
the Central Intelligence Agency leaves a great deal to be desired in
terms of upholding the law.
What if the committees here in the Congress did not become aware
of it-and there is no reason to think that they should necessarily 8
They could, of course, but what if there were an instance in which they
did not become aware of it H
Mr. CARLUCCI. Mr. Kostmayer, you are posing hypothetical upon
hypothetical based on an assumption that nobody in the CIA is an
honorable person, and I frankly cannot accept that.
Mr. KosTMAYER. I am not suggesting that, and you are basing part
of your testimony on assertions which you acknowledge are not valid,
so I do not think you are in a position to criticize my hypothesis.
But, in any event, what would a judge do if he were prohibited under
the law from disclosing the information or from ordering the disclo-
sure of it, but he discovers in his de novo review that the Agency has
violated the law $
Mr. CARLuccI. I think he could go to the Intelligence Oversight
Board. I defer to counsel.
Mr. KOSTMAYER. And disclose it ?
Mr. CARLUCCI. Yes, sir.
Mr. MAYERFELD. To the Intelligence Oversight Board-yes, sir.
Mr. KOSTMAYER. So. he could disclose it, then, to the Intelligence
Oversight Board 4
Mr. CARLUCCI. Yes.
Mr. KOSTMAYER. They are not subject to the law in this sense-that
they could have this information revealed to them 4
Mr. CARLUCCi. They can have any information in the Agency dis-
closed to them, and there is no breach of the law.
Mr. KOSTMAYER. Thank you.
Thank you, Mr. Chairman.
Mr. PREYER. Mr. Weiss?
Mr. WEIss. Mr. Chairman, I have one question, if I may.
We have a copy of Senate testimony given by Deputy Admi iistrator
Blake in September of 1977, and at that time-as chairman of the
CIA's Agency Information Review Committee, and the one responsible
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for the implementation of FOIA in the Agency, he was proud to
comment about FOIA :
My colleagues have worked very hard during these past 30 months to make the
act work according to the letter and spirit. We have been able to make the neces-
sary adjustments. I am pleased to report that, in fact, I think the Agency is
better off for it.
That was before a Senate committee on September 16,1977.
What has happened in the last 2 years? Were you not aware of the
perception problem then H
Mr. CARLUCCI. Let me just say that I disagree with that statement
by Mr. Blake, and I cannot really speak for him, but I would suggest
that the subcommittee have another conversation with him because
that is not the view that he reflected to me most recently.
In any event, I have laid out the situation as I perceive it, and I am
an authorized spokesman for the Agency.
Mr. WEISS. Two years from now someone else will be sitting there
saying that they disagree with Mr. Carlucci's statement on February
20,1980.
Mr. CARLUccI. That is their prerogative.
Mr. WEISS. That is right.
Thank you, Mr. Chairman.
Mr. PREYER. Thank you.
We appreciate your being here, Mr. Carlucci. You have certainly
pointed up the problems that you have when you come in conflict with
notions of an open society and informed participation by the citizenry
on' the one hand-the need for an effective intelligence service on the
other hand. And I hope working out the answer to that is not beyond
the wit of humankind. We certainly will look forward to trying to
resolve this problem.
Thank you very much for being here.
The subcommittee will stand adjourned. We will anticipate further
dialog on this subject.
[Whereupon, at 4:20 p.m., the subcommittee adjourned, to reconvene
subject to the call of the Chair.]
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THE FREEDOM OF INFORMATION ACT: CENTRAL
INTELLIGENCE AGENCY EXEMPTIONS
THURSDAY, MAY 29, 1980
HOUSE of REPRESENTATIVES,
GOVERNMENT INFORMATION
AND INDIVIDUAL RIGHTS SUBCOMMITTEE
OF THE COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10 a.m., in room 2247,
Rayburn House Office Building, Hon. Richardson Preyer (chairman
of the subcommittee) presiding.
Present : Representatives Richardson Preyer, Robert F. Drinan,
David W. Evans, Ted Weiss, M. Caldwell Butler, and John N.
Erlenborn.
Also present : Timothy H. Ingram, staff director; Timothy Hut-
chens, professional staff member; Euphon Metzger, clerk; and Thomas
G. Morr, minority professional staff, Committee on Government
Operations.
Mr. PRETER. The subcommittee will come to order. I apologize for
being late because of the caucus on the floor.
I appreciate your being here today.
We continue hearings today on the effect of the Freedom of Infor-
mation Act on access to intelligence information, particularly at the
Central Intelligence Agency.
Before us this morning are two principal bills, H.R. 7055 and H.R.
7056. H.R. 7055, which I have introduced, addresses a problem that the
CIA says it has with sources who perceive the Freedom of Informa-
tion Act as a reason why the CIA does not always keep its secrets.
On February 20 when we last held hearings on the effect of the
Freedom of Information Act on the CIA, Mr. Carlucci, the Agency's
Deputy Director, told us that the law protects vital intelligence infor-
mation, but he outlined concerns about its administrative burden and
impact on intelligence sources. We acknowledged that leaks, espionage,
and revelations by former Agency employees are also responsible for
the perception that the CIA cannot guarantee the confidentiality of its
sources.
In order to see whether there is a need to modify the access provi-
sions we have invited representatives of public interest groups as well
as historians and a representative of journalists to testify and answer
questions today about whether the CIA should be further exempted
from provisions of the Freedom of Information Act.
H.R. 7056, the second bill under consideration today, goes farther
than mine. The CIA and the Justice Department requested it and I
(73)
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introduced it on their behalf in order to bring it before the
subcommittee.
The second bill's main provision would eliminate judicial review of
decisions, not just by the CIA but also by the FBI, on whether to dis-
close certain intelligence and counterintelligence information.
Other provisions of the bill are also sweeping. To hear about their
potential impact I would first like to call upon Mr. Morton Halperin,
director of the Center for National Security Studies; and Mr. Mark
Lynch, counsel for the ACLU-American Civil Liberties Union-
project on national security.
It is a pleasure to have you gentlemen with us today. Your state-
ments will be made a part of the record. You may proceed in any way
you see fit. I call on Mr. Halperin first.
STATEMENT OF MORTON H. HALPERIN, DIRECTOR, CENTER FOR
NATIONAL SECURITY STUDIES
Mr. HALPERIN. Thank you, Mr. Chairman. We appreciate very
much the fact that you are holding these hearings and your invitation
to us to attend.
We have prepared a rather lengthy analysis of the CIA arguments
for an amendment. They are attached to our statement and I would
like to ask that they be made a part of the record with the statement.
Mr. PREYER. Without objection. so ordered.
Mr. HALPERIN. I should note that in the appendix to that report is
a letter addressed to you and to the chariman of the other committees
with oversight responsibility for the Freedom of Information Act
from 15 individuals and national organizations arguing against any
amendment to the Freedom of Information Act for the CIA. That is
with the report and I would also like to ask that that be made a part
of the record.
Mr. PREYER. Without objection, that will be made a part of the rec-
ord as well.
Mr. HALPERIN. I would like to do two things briefly this morning.
The first is to summarize the conclusions that we have reached in look-
ing with care at the arguments that the CIA has put forward for their
amendments. The second is to describe to you briefly the way in which
we use the act and the reason why we would obiect to any substantial
amendment, particularly any amendment that affected judicial review
of CIA decisions.
We believe the record shows that the CIA and the intelligence com-
munity in general have amnle authority to protect classified infor-
mation and to protect intelligence sources and methods. Indeed, it
remains the case as. it was when you previously held hearings that not
a single sentence has been released to the public under court order in
circumstances where the CIA has argued that the release would injure
the national security.
The problem, as the CIA admits, is a nroblem of perception or mis-
perception on the part of foreign intelligence agencies-and foreign
intelligence sources, but we do not believe that this problem can be
solved by amending the Freedom of Information Act because it is
based on a number of other ways in which information reaches the
press-from leaks, from publications of memoirs, from publications
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75
of books based on interviews with CIA officials, from leaks from high
White House sources to justify operations conducted at the direction
of the President, and so on.
We believe that all of those would go on even if the Freedom of
Information Act is amended.
Moreover, the CIA, when it was testifying before this committee
and in other places, was suggesting that only a far more sweeping
amendment would accomplish anything for them. They are now sup-
porting an administration bill which is far less sweeping than what
they originally asked for.
I think the truth is that the only thing that would do them any good,
as far as this perception problem is concerned, is for them to be totally
exempt from the Freedom of Information Act. They have not sought
that and I think that the truth is that anything less than that will
simply not solve whatever part of the perception problem could be
solved by changing the Freedom of Information Act.
The CIA, we believe, also overestimates substantially the adminis-
trative 'costs and burdens of the Freedom of Information Act. Mr.
Carlucci testified here that only 15 or 20 percent of their requests would
be, covered by the proposed amendment.
I would make two points about that. The first is that under the
Executive order issued by the President on classification any citizen
can request declassification of any document in the possession of the
CIA, so that even if this amendment went into-effect, or if a more
sweeping amendment did, you could still ask for the same material
under the Executive order. The CIA would still be required to do the
search, would still be required to do the review, and would still be
required to produce a decision on whether or not the document could
be released.
The difference, of course, would be that there would be no judicial
review, but there would not be any reduced administrative burden on
the Agency.
Moreover, the CIA's burden is small, as far as we can tell, compared
to other agencies. It gets fewer requests according to the annual
renorts than does the Department of Transportation, not to speak of
HEW or the Department of Defense.
Of course, since the CIA's budget is secret, I do not know whether
the amount of money they spend is a higher, fraction of their budget
than is that of the Department of Transportation. but one suspects
that it is not out of line with the percentage of the budget spent by a
great number of other agencies.under the Freedom of Information
Act.
Finally, and most important, I think. the CIA drastically under-
states the adverse impact of the ' proposed amendment on the public's
right to know. It is not true, as they suggested, that no important
information comes out. Indeed, a great deal of important information
about a number of CTA activities and CIA programs has come out
under the Freedom of Information Act,
This information, in many cases, has added to-and in some cases
contradicted-what was contained in official, reports based on informa-
tion that the CIA made available, for example, to the Church commit-
tee and other committees.
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Let me try to discuss a little more about that by explaining what
the Center for National Security Studies does and how it uses the
Freedom of Information Act.
Our role is to try to enable citizens, public interest groups, and
others, including those in the Congress, to know about what the CIA
and other intelligence agencies are doing in order to participate intel-
ligently in discussions about policies that affect the CIA-most not-
ably the proposed charter for the intelligence agencies which has been
debated over the past several months and the question of appropriate
oversight of the CIA.
For that purpose we have made very extensive use of the Freedom
of Information Act. Beginning on February 19, 1975, when the new
amendments reported by this committee and adopted by the Congress
over President Ford's veto, went into effect, we started making requests
of the CIA. We have been making requests consistently since then.
We have filed more than 50 requests for documents from the CIA
under the Freedom of Information Act. We have filed some 15 lawsuits
for documents from the CIA under the Freedom of Information Act.
We regularly review documents that are released to us as a result
of our requests or our lawsuits, or that are released to others, to deter-
mine what information in those documents is new and important to
public debate on intelligence agency issues. We publish those sum-
maries in our newsletter and then in a report, that we publish regularly
called from official files, which summarizes those documents.
I have included with our statement the latest version of those sum-
maries. I think if you glance at them you will see that a great many
very important documents of great relevance to public debate have
been released under the Freedom of Information Act.
We use those documents regularly in congressional testimony. We
have testified by request before the Senate and House Intelligence
Committees, the Senate and House Judiciary Committees, and other
committees of the Congress on issues related to intelligence agencies.
We would not be able to testify effectively and give the Congress the
kind of assistance that it asks us for unless we had the kind of infor-
mation and documentation that we regularly get by using the Freedom
of Information Act.
Let me just, briefly, give one or two examples of this role.
Prior to the 1975 amendments we made requests to the CIA under
the Freedom of Information Act. We were told, as almost everybody
who made a request was told, that the Agency was exempt from the
act, that anything that was classified was exempt, that anything that
protected sources and methods was exempt, and that everything in their
files fit in both of those categories. Therefore, there was no reason to
search. They simply would not make the information available to us.
That is, of course, the procedure and the situation that the Agency
would like to return to under these amendments, at least the one that
they originally proposed.
This meant, for example, that there was no way to challenge what
the CIA said. CIA Director Richard Helms made a speech in which
he told the American people that the CIA did not spy on Americans.
You may have seen him on the news last night explaining that they
did spy on Americans and that he thought they had a right to spy on
Americans, including journalists, to track down leaks.
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He was saying publicly that at precisely the time when he had
people following Jack Anderson and all of his colleagues around,
when he was spying on the antiwar movement and had files on thou-
sands and thousands of Americans, that the CIA did not have author-
ity to spy on Americans and did not spy on Americans.
-He repeated the same information before the Senate Foreign Rela-
tions Committee and there was no way that we or anybody else could
challenge that under the old act.
When the new act came in, one of the first documents that we asked
for was the Vail report, the report that William Colby prepared for
President Ford to respond to the charges in the New York Times that
the CIA did spy on Americans.
The administration, you may recall, at that point put out a state-
ment which essentially denied the accuracy of the New York Times'
story. The President had on his desk the report from Mr. Colby which
essentially confirmed the accuracy of the New York Times' story.
We asked for that document under the Freedom of Information
Act. We were told that not a word of it could be made public. We
appealed. We were again told that not a word of it could be made
public. We filed a lawsuit. We noticed a deposition of a senior CIA
official, and faced with the prospect of coming before us in a deposition
and having to answer detailed questions about what was in the docu-
ment, the CIA on the eve of that deposition suddenly released the
report, announcing that it was doing so consistent with its general
tendency to inform the public and make information available, when
in fact it was clear that it had released it only because of the lawsuit.
That has not changed. We are still in a battle with the CIA to get
them to make public information about their surveillance of
Americans.
The Executive order under which the CIA operates, 12036, requires
the CIA and all intelligence agencies to produce implementing direc-
tives specifying in detail their right to spy on Americans under various
circumstances and to get the approval of the Attorney General for
those directives.
The CIA drafted directives. They were approved by the Attorney
General last August. The CIA made no public announcement of the
fact that those directives existed. They did not publish them, as we
believe they were required to do by the provisions of the Freedom of
Information Act requiring the publication of regulations which effect
the public.
When we called them up and urged them to make them public, be-
cause they are totally unclassified, they refused to do so. They sug-
gested to us that we file a request under the Freedom of Information
Act.
We did that and a month or two later we have finally gotten half
of those directives. They have not given us the other half for reasons
which we still do not understand and are exploring with them.
The plain fact is that if the CIA had gotten the amendment that
they had asked for passed in the Congress we would have had no way
to get them to make public implementing directives which are unclas-
sified and which specify in detail their right to spy on American citi-
zens under a wide variety of circumstances and really constitute a
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secret charter which authorizes very extensive and, we believe, uncon-
stitutional-I might add-surveillance of American citizens.
We have also obtained from the CIA, as we mention in our state-
ment so I will not go into the details of that case, information about
the CIA use of academics which tells far more about that story than
has come out in the Church committee report. We think we are entitled
to a great deal more and we are pressing that issue. It is a matter of
great concern to a number of people in connection with the CIA char-
ter and with current CIA practices.
I do not want to leave you with the impression this morning that
we think the FOIA-Freedom of Information Act-is functioning as
well as it should. Indeed, we believe that the CIA has been deliberately
delaying responses to requests, not only from the Center for National
Security Studies but from other users, in the hope that Congress will
amend the act and free it from the requirement to search and review
and to submit documents for judicial review.
We have recently filed, Mr. Chairman, a lawsuit which makes those
allegations, which lays out a series of requests that we have made, some
of them going back to 1976, for CIA documents which the CIA has
not made available to use. They continue to tell us that they are work-
ing on them and that they will make them available some day. These
are laid out in this complaint which I would ask be attached to our
statement and which I think demonstrates that the Agency is simply
not living up to its commitments, not only to answer requests in 10
days but to diligently pursue release of information as quickly as
possible.
Finally. I would like to emphasize-and Mr. Lynch may want to
add to this as well-the essential role that we believe judicial review
plays in this process. That is not because courts are likely often, if
ever, to order the Agency to release material. but because the knowl-
edsre that they will have to go into court. that they will have to sign
affidavits, that a judge may actually look at the information in camera,
is a little like what somebody once said about the threat of hanging.
It clears the mind.
It forces one to think hard and clearly about what it is in fact that
they can withhold and what it is justified to withhold. We think that
threat of judicial review, the knowledge that it was there, has led the
Agency to release a great deal of information which they would simply
not release if they got the ability that they seek to simply certify that
information is exempt and to not have judicial review.
We think the 1974 amendments. for which this committee was
largely responsible, have made the CIA a better institution. We are
certain that they have played a maior role in permitting the kind of
public debate on intelligence agencies which is vital in a democratic
society.
We urge you not to change that situation. We would ask that you
leave the law the way it is and that you press the CIA to fully comply
with the letter and the spirit of the law as it is now written.
Thank you, Mr. Chairman.
Mr. PREYER. Thank you. Mr. Halperin.
Before we pass to questions we will call on Mr. Lynch for his
statement.
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STATEMENT OF MARK LYNCH, COUNSEL, AMERICAN CIVIL LIBER-
TIES UNION PROJECT ON NATIONAL SECURITY, CENTER FOR NA-
TIONAL SECURITY STUDIES
Mr. LYNCH. Thank you, Mr. Chairman. I do appreciate the oppor-
tunity to appear here this morning, particularly before a committee? as
Mr. Halperin pointed out, which is largely responsible for grappling
with these questions of judicial review and classified information in the
1973 and 1974 Congresses.
The committee reached a judgment at that time that was accepted
by the House and accepted by the House-Senate conference that courts
can play a proper role in reviewing de novo claims that information is
classified. President Ford disagreed with that judgment, vetoed the
bill. As the committee will recall, the veto was overridden. I think the
committee will recall, only 7 or 11 Members of the House voted to
sustain the veto.
There was an overwhelming consensus, which this committee devel-
oped at that time, that the act strikes a groper balance and the CIA
simply has not made the case that that judgment should be revised.
I would like to comment specifically on H.R. 7056, which I under-
stand is the administration's proposal. I would like to point out what
I think is the really invidious and pernicious provision of that bill
which seeks to overturn that judgment that the Congress and this
committee reached in 1974. That is the sentence beginning on line 12:
"In each such instance the certification shall be conclusive and not
subject to any judicial review."
This is based on the CIA's contention that the possibility that the
judges may review information in camera is causing a catastrophic
disruption of the CIA's relations with foreign sources. The foreign
sources are reluctant to deal with the CIA or provide information to
the CIA because a judge may look at it at some point and the judge
has the authority to order its disclosure. This is their contention.
As Mr. Halperin pointed out, in all of the many many cases which
have been litigated so far under the Freedom of Information Act there
is only one case wherein Judge Gerhardt Gesell ordered information
that the CIA contended was classified to be released, and they were
just a very few fragments of information in a document.
The information has not yet been released because it is on appeal.
The CIA could well win on appeal, in which case they will have main-
tained their perfect record of always being able to persuade judges,
when it gets down to the crunch-after the initial request process, the
appeal, the litigation process, during all of which more information is
generally made public-but when it gets down to that hard kernel of
what is really classified, when all of the insubstantial arguments for
classification have been stripped away, they always win.
They simply cannot point to any breach of security as a result of
the judiciary.
If we compare this to the situation that a foreign source faces when-
ever he provides information to the CIA, we come to what he has to
think about. Where might that information go? Well, it can be dis-
tributed to the various components of the Central Intelligence Agency,
and there are a lot of people there, and sometimes they leak.
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so
The information sometimes may go to the White House, and the
White House leaks. The information goes to the Department of De-
fense, and the Department of Defense leaks. The information goes to
the State Department, and the State Department leaks. The informa-
tion can go to Congress and, although Congress does not leak anywhere
near as much as the CIA says it does, sometimes it does.
Finally, a citizen can trigger review of the classified information by
the information security oversight law. This was established by the
Executive order. That means that people from the Archives and of-
ficers of the General Services Administration can get into the act.
All these people may review and learn the contents of information
provided to the CIA by a foreign source, but the CIA says it cannot
be provided to the Federal judiciary. I think that is a wholly unwar-
ranted attack on the integrity of our Federal bench. There is no case
for it, and I think this proposal should be firmly rejected as wholly
unwarranted.
Thank you, Mr. Chairman.
Mr.. Pxame. Thank you very much, Mr. Lynch.
Without objection that material you have provided with your state-
ment and your statement will be included in the hearing record at this
point.
[Prepared statement by Morton H. Halperin and Mark II. Lynch,
with attachments, follows:]
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STATEMENT BY MORTON H. HALPERIN AND MARK H. LYNCH
ON BEHALF OF THE
AMERICAN CIVIL LIBERTIES UNION
AND THE
CENTER FOR NATIONAL SECURITY STUDIES
BEFORE THE SUBCOMMITTEE ON
GOVERNMENT INFORMATION AND INDIVIDUAL RIGHTS
OF THE
HOUSE COMMITTEE ON GOVERNMENT OPERATIONS
H.Res. 7055 and 7056
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Mr. Chairman,
We appreciate very much the invitation to appear before this
subcommittee this morning to discuss the proposed amendments to the
FOIA related to the CIA and other intelligence activities.
The Center for National Security Studies has prepared a
detailed analysis of the CIA arguments for an amendment which it has presented
before this subcommittee and elsewhere. We would ask that this report,
which is attached to our statement, be made part of your hearing
record. After summarizing its main conclusions we propose to discuss
the great importance of the FOIA to CNSS in its role as a public
interest group monitoring the activities of the intelligence community.
Our study of the CIA arguments in favor of a drastic amendment
to the FOIA leads to the following conclusions:
-- The intelligence community has ample authority under
the cuZrent?FOIA to protect classified information and
intelligence sources and methods. Indeed the CIA has
used the Act effectively and as of May 1980, not one
sentence has been released to the public under a court
order in circumstances where the CIA has argued that
release could injure the national security.
-- The problem as the CIA candidly admits is really one of
"perception" or "misperception" on the part of foreign
intelligence. officers and foreign sources of information
that secrets are not protectable under the FOIA. But this
misperception cannot be solved by amending the FOIA since
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the perception is also based on fears of leaks, congressional
oversight, the publication of CIA memoirs (censored and
uncensored), civil lawsuits, CIA abandonment of its agents
and allies in Vietnam and elsewhere, and other factors
having nothing to do with the FOIA. Moreover, even as the
problem relates to the FOIA, it could only be solved by a
total exemption and not even by the drastic surgery proposed
by the Administration.
that the new exemption would save or reduce. The Deputy
Director of the CIA, Mr. Frank Carlucci testified before
this committee that only 15 to 20 percent of current
requests for information from the Agency would be affected
by the exemption and that exaggerates the saving.
-- More important, the CIA understates the adverse impact
of the exemption on the public's rights to know-. Considerable
amounts of information regarding CIA and other intelligence
operations.have been released by the CIA under the FOIA.
Through the POIA, the public has learned more about the
of Pigs invasion, mind-drug experiments, and CIA spying
Americans. Much of the information was not included in
congressional reports on the CIA and some of it makes
Bay
on
clear that CIA operations were more extensive than official
investigations had indicated.
-- Congressional oversight is no substitute for public
accountability of the CIA under FOIA. The CIA says it
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is willing to give all information to the Congress for
purposes of oversight and that this is further reason for
granting the exemption. Yet disclosures under the FOIA
have shown that the CIA did not turn over all information
about past operations to the Congress and congressional
committees have not always made relevant information
available to the public. The FOIA has independently added
to the public record of the agencies.
Let us turn now to the importance of the FOIA to the ability
of public interest groups to monitor the activities of the CIA.
The Center for National Security Studies has made extensive
use of the FOIA in seeking to learn about the activities of the CIA
and other intelligence agencies and to supplement the information
provided to Congressional committees and made public by those
committees.
On February 19, 1975 when the 1974 amendments to the FOIA went
into effect we filed some 5 requests with the CIA. A few months later
we..filed four ..lawsuits for documents withheld by the CIA and other
agencies. Since then we have made more than 50 requests and filed
some 15 lawsuits on behalf of the Center and other groups through
our litigation project, the ACLU Project on National Security. We
regularly review documents released by the CIA and other agencies
to determine what new information they contain. Summaries are printed
in our monthly, First Principles, and in a CNSS report, From Official
Files, which is regularly updated and widely reprinted. We would
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ask, Mr. Chairman, that the CIA section of the latest edition be.
included as an appendix to our statement since it provides documentation
for the position that much of value is released under the FOIA.
We also make use of documents released under the FOIA in
litigation and in testimony which we present regularly at the requests
of a number of congressional committees including the House and Senate
Intelligence Committees. The documents are also used in CNSS reports
and in books and articles written by the CNSS staff.
Put simply, the FOIA is essential to. the activities of CNSS.
The amendment proposed by the Administration -- indeed any amendment
which did not provide for full judicial review would be fatal to the
effective functioning of the Center and we believe to all efforts
on the part of citizen groups to monitor the activities of the CIA
and to participate in the process of developing charters and monitoring
compliance with them.
Let us explain.
Prior to 1975, the CIA was essentially exempt from the POIA.
When we or others made requests to the Agency we were told that all
of its files were classified and were exempt from disclosure by
statute. The Agency was essentially free to determine what to
release and what not to release. What it released was essentially
self-serving.
For example, in one of his few public statements, CIA
Director Richard Helms told the American people that the CIA did not
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spy on Americans;'he repeated the same information before the Senate
Foreign Relations Committee. When he made those statements there
was no way that anyone could test their accuracy.
One of the first documents which CNSS requested was the so-called
Vail Report prepared by William Colby, then the CIA Director, for
President Ford, describing the CIA's surveillance of Americans in
light of the New York Times story reporting what it called a
massive illegal surveillance program. The CIA refused to release
a word of the report or its appendices. After we sued and on the
eve of a deposition of a senior CIA official, the entire report was
released.
When asked at the deposition why the CIA had believed that
it could withhold the entire report the CIA official explained candidly
that it was the "policy" of the agency not to discuss its activities
in the United States or its surveillance of Americans. That "policy"
ended that day. It would, we suggest, be reinstituted the day that
Congress passes the kind of sweeping amendment that the CIA seeks.
One of the things which suggests that the CIA would revert to
its old ways is its continued refusal to release material related
to the surveillance of Americans unless it is specifically demanded
under the FOIA. One very recent example will suffice.
Executive Order 12036 under which the CIA conducts surveillance
of Americans requires the agencies to develop implementing directives
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and secure approval for them from the Attorney General. The CIA
drafted such guidelines and they were approved in August of 1979.
Yet despite the fact that the guidelines are unclassified the CIA
neither made them public nor even announced they existed. When asked
to release them the agency declined to do so until a formal request
was made under the FOIA. Even then the agency did not release all
of the guidelines -- a matter we are continuing to explore with the
agency.
The importance of the FOIA to supplement the reports of
congressional committees can be illustrated by the information which
has been released under the FOIA related to the CIA's use of academics.
The Church Committee discussed current CIA practice
only in the most elliptical manner while calling upon universities
to establish guidelines to control what the committee described as
a threat to the integrity of American universities. Our FOIA cases
have pried loose some additional details about the program of secret
relations with university professors to assist the CIA in recruiting
foreign students. We believe that we are entitled to know much more
about these programs and have two cases pending in the courts, but
even what has been released so far has been of great value in
alerting professors and universities to the issues and in enabling
them to participate in the current debate about whether such use
should be prohibited in the intelligence charter.
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Mr. Chairman, we do not want to leave this subcommittee with
the mistaken impression that the FOIA is functioning as well as it
should. Indeed, we believe that the agency is deliberately delaying
responding to requests not only from CNSS but from other users in the
hope that Congress will amend the Act and free it from the requirement
to search, review and to submit documents for judicial review. We
have recently filed a lawsuit making this allegation. A copy of the
complaint is attached to our statement.
Finally, Mr. Chairman, we wish to underscore the essential role
which judicial review plays in the process. It is not that courts
will often or even perhaps ever order the Agency to release material.
Rather it is that the knowledge that a judge may examine material
in camera leads the Agency, its attorneys, and the Justice Department
attorneys, to take a hard look at the requested material and to decide
if its withholding is really justified. In requiring such judicial
review in 1976 Congress took a great step forward. The record since
then amply demonstrates the importance of that change in the law and
there is nothing in the record to show that it has harmed the national
security. As a result of the 1974 amendments we believe that the CIA
is a better institution and that it is more responsive to the dictates
of the Constitution. We urge you not to change that situation. The
law should, in our view, be left as it is and the agency should be
urged to more fully comply with its letter and its spirit.
We would now be happy to respond to any questions you may have.
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M
Center for National
Security Studies
The CIA And The Freedom
Of Information Act
A Report On The Proposals
For An Exemption
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THE CIA AND THE FOIA
A REPORT
ANALYZING CIA PROPOSALS
TO EXEMPT MOST
AGENCY FILES FROM THE
FREEDOM OF INFORMATION ACT
Prepared by The Center for
National Security Studies
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91
TABLE OF CONTENTS
Preface . . . . . . . . . . . . . . . . . . . . . . . . Page i
Introduction and Summary . . . . . . . . . . . . . . . . . . 1
The Current State of the Law . . . . . . . . . . . . . . . 2
The CIA Proposal . . . . . . . . . . . . . . . . . . . . . . 7
The CIA Case for Its Proposal . . . . . . . . . . . . . . . 9
The Case Against Sweeping Amendment . . . . . . . . . . . . 11
Reassuring Intelligence Services and Sources. . . . . . 12
Nothing of Importance is Released . . . . . . . . . . . 15
How the FOIA Operates . . . . . . . . . . . . . . . . . 17
Administrative Burden . . . . . . . . . . . . . . . . . 18
Footnotes . . . . . . . . . . . . . . . . . . . . . . . . . 22
APPENDICES
APPENDIX A -- Texts of Proposed Amendments. . . . . . . . A-1
APPENDIX B -- List of Books and Articles Released Under
the FOIA . . . . . . . . . . . . . . . . . A-4
APPENDIX C -- List of CIA Documents Released Under the
FOIA . . . . . . . . . . . . . . . . . . . A-6
APPENDIX D -- Sample of FOIA Documents as Reprinted in
(Macy & Kaplan, eds.), Documents, (New York:
Penguin Books, 1980), I usTL trating the Value
of Full Documents . . . . . . . . . . . . . A-10
APPENDIX E -- Sample of a Document Contradicting the
Church Committee Report . . . . . . . . . . A-15
APPENDIX F -- Joint Letter Opposing FOIA Amendment. . . . A-19
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PREFACE
In testimony before the Administrative Practice and
Procedures Subcommittee of the Senate Judiciary Committee in
1978 John Blake, the career CIA official in charge of FOIA
requests, in a prepared statement said the following about
the CIA and the FOIA:
But, as you gentlemen well know, there is
an inherent tension between the needs of an
open society and the requirements of a secret
intelligence organization. I feel very
strongly that these two opposing needs must be
reconciled. Let me be frank. The 1974 amend-
ments to the FOIA and the ensuing public
interest constituted a somewhat traumatic
experience for a national intelligence officer
who had been trained and indoctrinated to
conduct his work in secrecy. These amendments
required a considerable adjustment in attitude
and practice.
As chairman of the Agency Information Review
Committee, I am responsible for the implementation
of the act in the Agency. I am proud to say that
my colleagues have worked very hard during these
past 30 months to make the act work according to
the letter and spirit. We have been able to make
the necessary adjustments. I am pleased to
report, that, in fact, I think the Agency is
better off for it.
Freedom of Information Act Hearings before the
Administrative Practice and Procedures Subcommittee,
Senate Judiciary Committee, 95th Cong. 1st Sess.
(1978), p. 69..
Since then Mr. Blake has retired and the CIA has changed
its view. This report seeks to demonstrate that Mr. Blake was
correct in 1978 and what he said remains true today. Congress
in 1974 created the means for citizen review of the CIA and
other national security agencies. These amendments were fully
in the spirit of the First Amendment's commitment to open and
robust debate. They have amply demonstrated their value and
should not be abandoned now.
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The concern of a broad range of groups and individuals
is shown by the joint letter distributed by the Campaign for
Political Rights and signed by more than 150 organizations and
prominent individuals (See Appendix F).
The FOIA has been indispensable to the work of the
Center for National Security Studies in serving as a watchdog
of the CIA and other intelligence agencies.
An Act which has done so much good and no discernable
harm should be strengthened and not abandoned.
Morton H. Halperin
Director
Center for National Security Studies
Washington, D.C.
2 April 1980
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Introduction & Summary
The CIA is asking the Congress to grant it and other
intelligence components designated by the Director of Central
Intelligence an almost total exemption from the disclosure
requirements of the Freedom of Information Act, 5 U.S.C. 552,
(FOIA or Act). Legislation drafted by the CIA which would
create such an exemption has been introduced in both houses of
the Congress (S. 2216 and H.R. 6316). An exemption just for
the CIA is included in S. 2284, (The National Intelligence Act).
The CIA has not demonstrated a need for the broad exemption
it seeks or shown that the "relief" it requests will in any way
remedy the problems it ascribes to the working of the FOIA.
The measure will, however, increase secrecy, reduce public
accountability of the CIA, and drastically curtail the flow
of valuable, non-sensitive information concerning agency policy
and operations that is so essential to informed public debate.
This report demonstrates that the CIA has not made a
convincing case for changing the disclosure requirements
the CIA and other intelligence units under the FOIA. As
memorandum makes clear:
-- The intelligence community has ample authority
under the current FOIA to protect classified
information and intelligence sources and methods.
Indeed the CIA has used the Act effectively and as
of March 1980, not one sentence has been released
to the public under a court order in circumstances
w ere t e CIA has argued that release would injure
the national security.
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-- The problem as the CIA candidly admits is really
one of "perception" or "misperception" on the part
of foreign intelligence officers and foreign sources
of information that secrets are not protectable under
the FOIA. But this misperception cannot be solved
by amending the FOIA since the perception is also
based on fears of leaks, congressional oversi t,
t epubu lication o CIA memoirs (censored and
uncensored), civil
awsuits,
CIA abandonment of its
agents and allies n
Vietnam
an elsewhere, an
other factors having
nothing
to do with the FOFA.
-- The CIA overstates the administrative costs and
burdens that the new exemption would save or reduce.
The Deputy Director of the CIA, Mr. Frank Carlucci
recently testified before the House that only 15
to 20 percent of current requests for information
from the Agency wou d e affected by the exemption.
-- More important, the CIA understates the adverse
impact of the exemption on the public's right to know.
Considerable amounts o information regarding CIA
and other intelligence operations has been released
by the CIA under the FOIA. Through the FOIA, the
public has learned more about the Bay of Pigs
invasion, mind-drug experiments, CIA spying on
Americans. Much of the information was not included
in congressional investigations of the CIA a some
of it makes it clear that CIA operations were more
extensive than official investigations had indicated.
-- Congressional oversight is no substitute for public
accountability of the CIA under FOIA. The CIA says it
is willing to give all information to the Congress for
purposes of oversight and that this is further reason
for granting the exemption. Yet disclosures under
the FOIA have shown that the CIA did not turn over all
information about past operations to the Congress and
congressional committees have not always made relevant
information available to the public. The FOIA has
independently added to the public record the agencies.
Moreover, the CIA, w e arguing for congressional over-
sight as a substitute or? the Act, is resisting
legislation that would insure that the Con ress is fully
and currently informed a out al CIA operations.
The Current State of the Law
The CIA must now respond to requests under the FOIA from
any "person" by searching its files for the requested documents,
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reviewing them to remove sentences and paragraphs which are
exempt from disclosure, and releasing the remainder. It is
free to charge search and copying fees unless "furnishing
the information can be considered as primarily benefiting the
general public." 1/ Although the Act requires the CIA and
all agencies to respond to requests in 10 days and to appeals
in 20 the CIA almost always takes considerably longer. 2/
The CIA can rely on all of the first seven exemptions to
the FOIA, but in practice most of its withholding is based on
the first exemption for national security information, on
two so-called (b)(3) statutes which apply to the Agency, and
on exemption 6 which protects personal privacy. 3/
The first exemption to the FOIA provides that the agency
may withhold information which is properly exempt under the
Executive Order on Classification. 4/ Under the cases
interpreting the (b)(1) exemption the CIA, to withhold information,
must determine that the release of the requested information
could reasonably be expected to cause "identifiable damage to
the national security." If a suit is filed for the requested
documents the court must determine for itself that the documents
are properly classified, i.e., that release could reasonably be
expected to cause identifiable damage and that the procedures
of the Executive Order have been followed. The CIA can seek
to persuade the court that the documents are properly classified
by submitting public affidavits. If that effort is not successful
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the CIA can submit secret affidavits to be examined by the
court alone or the court can examine the documents itself to
determine if they are properly classified. 5/
In only one case has the CIA been ordered to release
information which it asserted was classified. 6/ Some three
or four lines were ordered released. Since that case, Holy
Spirit Assoc. v. CIA, Civ. No. 79-0151 (D.D.C. July 21, 1979),
is on appeal it remains true (as of April 1, 1980) that not a
single sentence from a CIA classified document has been released
under a court order in an FOIA case. 7/ The government would,
of course be free to seek Supreme Court review were the Court of
Appeals to sustain the District Court decision.
Wholly apart from the first exemption, the CIA can with-
hold material under the third exemption which permits the
withholding of information if Congress has passed a statute
which authorizes such withholding. That exemption, as amended
by Congress in 1976 reads as follows:
"specifically exempted from disclosure by statute,
provided that such statute (A) requires that the
matter be withheld from the public in such a manner
as to leave no discretion on the issue, or (B)
establishes particular criteria for withholding
or refers to particular types of matters to be
withheld."
Two CIA statutes have been held to fit these criteria
and to be (b)(3) statutes that permit withholding. One of
these, 50 U.S.C. 403(d)(3) reads as follows:
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"the Director of Central Intelligence shall be
responsible for protecting intelligence sources
and methods from unauthorized disclosure."
The Court of Appeals for the D.C. Circuit has held that
the section is a (b)(3) statute but that its scope is limited
to the withholding of information whose release could lead
to the disclosure of CIA sources and methods. Phillippi v. CIA,
546 F. 2d. 1009, 1015 n. 14 (D.C.Cir. 1976). In such cases
the court noted that the information would also be properly
classified and hence that the two CIA exemptions usually merge.
One difference is that when the CIA relies on 403(d)(3)
it need not follow the procedural requirements of the Executive
Order. Another is that the CIA has successfully invoked this
exemption to withhold domestic sources whose identity is not
properly classified under the Executive Order. While courts
have upheld this use one court has ordered the release of
information said by the CIA to be covered by this statute.
Since that case, Sims v. CIA, Civ. No. 78-2551 (D.D.C. order
Aug. 7, 1978), is also under appeal there has been no court
ordered release of information whose release the CIA claimed
would reveal intelligence sources or methods.
This statutory authority to withhold information is repeated
in S. 2284, Sec. 412(e)(4), without change. Since the CIA is
not seeking expansion of its authority under this provision and
critics are not proposing to cut it back, there does not appear
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to be any controversy about this provision as it relates to
the FOIA. 8/
The other statute on which the CIA relies for withholding
information is 50 U.S.C. 403(g). That statute reads as follows:
"In the interests of the security of the foreign
intelligence activities of the United States
and in order further to implement the proviso
of section 403(d)(3) of this title that the
Director of Central Intelligence shall be respon-
sible for protecting intelligence sources and methods
from unauthorized disclosure, the Agency shall be
exempted from the provisions of section 654 of Title 5,
and the provisions of any other law which require the
publication or disclosure of the organization, functions,
names, official titles, salaries, or numbers of
personnel employed by the Agency: Provided, That in
furtherance of this section, the Director of the
Bureau of the Budget shall make no reports to the
Congress in connection with the Agency under section
947(b) of Title 5, June 20, 1949, c. 227, S 7, 63 Stat. 211."
That statute has been construed to fit within the criteria
for a withholding statute under the FOIA and the CIA need not
prove that release of identifying information about is personnel
would adversely affect its activities or reveal sources and
methods. Baker v. CIA, 580 F.2d. 664 (D.C.Cir. 1978). However,
the Court of Appeals has also held that the statute is limited
to information about CIA personnel and structure and does not
extend to its activities. Phillippi v. CIA, 546 F.2d. at 1015 n. 14.
To summarize: the CIA can now withhold any information which
is properly classified, any information which would reveal
intelligence sources or methods and any information relating to
its personnel, and any information whose release
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constitutes an unwarranted invasion of personal privacy.
These exemptions are sufficient to have enabled the Agency to
withstand all but a small number of challenges in court. At
the same time, much important information has been released.
The CIA Proposal
The CIA proposal for amending the FOIA is included in
bills introduced in both houses of Congress. (S. 2216 and
H.R. 6316). A similar provision is included in the comprehensive
charter proposal (S. 2284). 9/ (See Appendix A for the texts
of these proposals.) The main difference is that S. 2284
limits the new procedure to the CIA while the other bills permit
the Director of Central Intelligence (DCI) to designate other
intelligence components which require this authority.
The CIA proposal would constitute a fundamental departure
from the principles of the FOIA. It does not seek to change the
standard for withholding particular documents. Rather it seeks
to exempt most of the files of the CIA from all of the procedures
of the FOIA for all time.
Under the proposal the DCI could designate files of the
CIA and other intelligence agencies related to such matters as
covert collection, special activities, counterintelligence, or
technical collection. Files so designated would be totally exempt.
The Agency would not be obliged to search its files for relevant
documents; it would not be required to review documents line
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by line or to release non-exempt segragable portions; it would
not be subject to court orders requiring a detailed indexing
of the withheld material.
The CIA could simply respond to a request by asserting
that the requested information, if it existed, would be in the
exempt files. It will be free of the obligation to search or
to review files.
Moreover, the section is written so as to insure the CIA's
continued exemption from any new requirements Congress might
add to the FOIA. For example, in 1976 Congress amended the
third exemption to the FOIA and thereby established more stringent
criteria for other statutes which authorized withholding
information. That amendment affected the CIA as well as other
agencies. The proposed CIA amendment would exempt the CIA from
the standards of the 1976 amendment and from any limitations
contained in any future amendment to the FOIA.
The only exception to the exclusion of all CIA operational
files from the FOIA is that Americans could ask the CIA for files
pertaining to themselves. The CIA could continue to withhold
information from personal files under its existing exemptions
but it would at least be required to search for, to review,
and, in a lawsuit, to itemize what material it has. However,
the scope of this personal files exception would be relatively
narrow. An individual might get his or her own file but not
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the general files of the program under which the surveillance
was conducted. Thus, for example, under the proposed section
an individual who was the target of operation CHAOS (the CIA
surveillance of the anti-war movement) could get some of his
or her own files but not the general files on the CHAOS program
or the files on a particular organization in which the individual
was active and which was a target of CHAOS. Moreover, CIA
regulations relating to surveillance of Americans would also
be exempt.
The only CIA documents which would remain fully subject to
the FOIA would be what the Agency refers to as "finished
intelligence." These are studies or reports on such topics
as oil supplies. Such reports are generally written in the
"overt" or "analytic" side of the Agency, formerly known as
the Deputy Directorate for Intelligence (DDI), and now known
as the National Foreign Analysis Center (NFAC). Such studies
draw on information from human and technical sources but are
generally written to disguise the sources of the information.
These reports are useful to learn the CIA's views about the
world but they reveal little about the operational activities
of the Agency.
The CIA Case for Its Proposal
In testimony before the Subcommittee on Individual Rights
of the House Government Operations Committee, former Ambassador
Frank Carlucci, now the Deputy Director of Central Intelligence,
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spelled out the CIA case for these sweeping proposals.
In that testimony Ambassador Carlucci emphasized that
"the problem can best be examined as a matter of perception:"
CIA sources believe that as a result of the FOIA the CIA
cannot protect its agents. 10/
He argued that an intelligence service cannot function
if it is subject to the disclosure rules that apply to the
rest of the government.
The CIA position can best be understood by quoting from
the February 20th testimony:
"My theme today, therefore, is that the current
application to the CIA of public disclosure statutes
like the Freedom of Information seriously damage the
Agency's ability to do its job. * * * * * * * * * * *
-- Under the current Freedom of Information Act, national
security exemptions do exist to protect the most vital
intelligence information. The key point, however, is
that those sources upon whom we depend for that information
have an entirely different perception. Admittedly, this
perception arises from more than the FOIA. * * * * * * *
The Freedom of Information Act, however, has emerged as
a focal point of the often-heard allegation that the CIA
cannot keep a secret, that is, cannot properly protect
its information from public disclosure. It has, therefore,
assumed a larger than life role as a symbol of this
nation's difficulty in keeping confidences inviolate.
The perception held by those who would only enter into
arrangements with us on a confidential basis is something
we cannot ignore. * * * * * * * * * * * * * * * * * * *
It is virtually impossible for most of our agents and
sources in such societies to understand the law itself,
much less why an organization such as the Central Intelli-
gence Agency, wherein reposes their identities and the
information they have provided, should be subject to the
Act. We constantly witness sensational news articles
describing CIA information detained under FOIA. 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 information which
he has furnished to the Agency which can be traced back
to him. * * * * * * * * * * * * ^ * * * * * * * * * * *
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Although we assure these individuals that their
information is and will continue to be well protected,
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 important whether they are right or not but in their minds the CIA is no longer able to
absolutely guarantee that information which they
provide the U.S. government is sacrosanct. Again,
we believe we can keep it so, but it is, in the final
analysis, their perception -- not ours -- which counts.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
The FOIA also has had a negative effect on our relationships
with foreign intelligence services. As I noted in my
testimony last April, the chief of a major foreign intelli-
gence service sat in my office and flatly stated that he
could no longer fully cooperate as long as CIA is subject
to the Freedom of Information Act. Likewise, a major
foreign intelligence service dispatched to Washington
a high ranking official for the specific purpose of
registering concern over the impact of the FOIA on our
relationship. I strongly argued that we had adequate
national security exemptions. While admitting awareness
of these exemptions, this representative correctly noted
that even information denied under the exemptions was
subject to later review and possible release by a U.S.
Court. * * * * * * * * * * * * * * * * * * * * * * * * *
Finally, it is not only foreign sources of intelligence
information that feel threatened by the FOIA's applicability
to the Central Intelligence Agency. The FOIA has impacted
adversely on our domestic contacts as well. * * * * * * * *
While the vast majority of CIA information is properly
secret, efforts to excise these secrets from documents in
response to FOIA requests produces fragmented information
which is often out of context, and therefore misleading.
Often such fragmentary information released under FOIA
has been embellished with conjecture to produce sensational
but misleading or fallacious stories."
The Case Against Sweeping Amendment
The CIA concedes one part of the case against amendment.
It agrees that the exemptions now in effect provide ample authority
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to withhold any information which needs protection in the
interests of national security. The CIA argues, however, that
it needs a new exemption in order to be able to assure other
intelligence services and potential foreign sources that it
will be able to protect information provided in confidence.
The CIA also argues that the Act is an administrative nightmare
which produces no benefit for the public, despite all of the
hours spent by CIA employees, because nothing of value is ever
released. These arguments are considered in turn.
Reassuring Intelligence Services and Sources
There is no reason to doubt the CIA claim that some friendly
intelligence services and sources are somewhat leery about
cooperation with the CIA because so much information has been
made public about the agency in the past few years -- in some
cases without the consent of the Agency. It is also possible
that some of these sources have referred to the FOIA as the
problem. However, as the CIA admits, the FOIA is not the sole
or even leading cause of the problem. The solution as it relates
to the FOIA is to explain to potential sources that the FOIA
has not been the source of the disclosures to which they may
object and that the CIA has every reason to be confident that
it will be able to continue to withhold such information.
The CIA may be reluctant to explain to its sources and
cooperating intelligence services that there are other procedures
not entirely under its control which have and might well in the
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future lead to the disclosure of information over the objections
of the CIA. Although the CIA is attempting to deal with some
of these problems others will remain intractable.
The various means by which information about the CIA has
become public over the objections or without the consent of the
agency include the following:
-- Leaks. The press is much more willing than it was
bars ago to publish information about the CIA.
Officials in the intelligence community and elsewhere
in the administration continue to leak such information.
Damage Actions. Individuals whose rights are damaged
by actions of CIA officials can bring suit against
the United States under the Tort Claims Act or against
individual officials under the Constitution. Such
actions against the CIA have been sustained and have
led to the release of information about CIA programs
as well as information in individual files of
Americans. 11/ The CIA has not sought exemption from
such suits.
Former Officials. More than 100 former officials
are now writing their memoirs. Some may do so without
clearing the manuscript with the Agency, 12/ others
will submit for clearance but even so information may be
inadvertently released. 13/ Moreover, many CIA
officials have given interviews without Agency clearance
to those writing books about the Agency revealing
information that the CIA would not clear for publication. 14/
None of this is likely to stop.
Spies. The CIA appears to have a better record at
preventing the penetration of the Agency by spies at
high or low levels than most if not all of the
intelligence services said to be complaining about its
security. Nonetheless as the recent Kampiles and
Boyce cases demonstrate the Agency is not entirely
immune to penetration by hostile intelligence services
and can give no guarantees.
CIA Disavowal of Its Agents. Several times in the past
few years the CIA has gotten into relations with groups
or individuals and then pulled out leaving the individuals
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exposed. The most notorious case was the exodus
from Vietnam. The CIA not only failed to take
those Vietnamese who had cooperated with the Agency
out of the country as it had promised but it left
behind records which identified them to Hanoi as
CIA collaborators. 15/ Other such episodes
occurred with the Meo Tribes in Laos and the Kurds
in the Middle East. 16/
An agency that behaves in this way whether
under orders from above or on its own might well
expect others to hestitate about cooperating with
the agency.
-- Congress. The Senate and House Intelligence Committees
now operate under procedures which lead them to be
briefed in great detail about current CIA operations.
The committee rules provide that either house can
make information public even if the President objects.
All of these provisions are incorporated into S. 2284.
While neither house has yet even considered exercising
this power its presence would stand in the way of an
iron-clad CIA guarantee to its sources.
Moreover, even the sweeping amendment proposed by the
CIA would not solve the perception problem such as it is. The
CIA could still not give any absolute assurance that no
information would be ordered released by a court which would
expose a secret source or reveal a relationship with a foreign
intelligence service. Such information might be included in
the personal file of an American which would still be subjected
to the current procedures of the FOIA or it might be deduced
from information in a finished intelligence report which would
likewise remain subject to the Act. 17/ Even information which
the CIA said was in files now exempt from search and review
would be subject to court review to determine if the designation
was correct. Thus the CIA could not give a flat assurance to
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potential agents nor could it withstand a challenge from lawyers
from friendly intelligence services who would argue that the
CIA still could not give the absolute assurance that the Agency
says they seek.
If the CIA is to solve what it says is the problem it
would require a complete and absolute exemption from the Act
in all respects. That it is not seeking.
Nothing of Importance is Released
The CIA assertion that no information of any importance
is ever released as a result of FOIA requests is simply false.
Many important books and articles have made use in varying
degrees of information released by the CIA under the FOIA.
(See Appendix B) Many important documents have been released
under the Act. (See Appendix C)
The more refined version of the CIA argument, apparently
developed in response to the circulation of such books and
documents lists, is that all of the information of value that
was released was made public only because it simply confirmed
information that was in the Church Committee Report and other
congressional studies. That also is not the case. Even where
documents released related to subjects touched on in the Church
Committee Report the new releases have thrown additional light
on such important subjects as CIA drug testing, spy operations
against Americans labeled MERRIMAC and RESISTANCE, CIA covert
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actions in Chile, CIA relationships with journalists and
academics and with local police departments. 18/ In some
cases they have contradicted the congressional reports.
Moreover, historians find it useful and even necessary to have
access to the actual documents and'such documents can be a
very valuable tool for bringing home to students and others
the reality of past abuses. 19/
Moreover the CIA to its credit has made public many documents
relating to subjects simply not covered by the congressional
investigations. These include: The CIA's delimitation in
agreement with the FBI concerning activities in the U.S.; the
purported legal basis for the Agency's covert propaganda, sabotage
and paramilitary operations; internal discussions of CIA
activities in Laos in 1969; use of satellite photography to
spy on domestic demonstrations; attempts to keep the story of
the Glomar Explorer out of the press.
Those seeking to perpetuate public debate about the role of
the CIA use the Act regularly and are fighting its amendment not
because they want to tie up a very small percentage of the CIA
staff in dealing with their requests but because they have
secured and expect to continue to secure the release of documents
of great value to that public debate. 20/
The CIA also argues that the FOIA was useful in the past
when the Agency was not under effective monitoring by Congress
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and internal mechanisms. It suggests that public oversight
via the FOIA is no longer necessary. Senator Huddleston in
introducing S. 2284 indicated that he would be opposed to any
CIA relief from the FOIA except in the context of a comprehensive
charter. However, even if Congress enacted such a charter and
it was shown to be operating effectively for a number of years
citizens should still be entitled to secure the release of
documents under the FOIA. Perhaps at some future time a
narrowly tailored change would be appropriate.
How the FOIA Operates
The apparent paradox -- that information has never been
ordered released by a court yet the FOIA has nonetheless led
to the publication of much information about the agency which
would not otherwise have been made public -- can be explained
by examining the process which a request undergoes.
When a request is made for a file, it is pulled and
examined to determine if there is any information in the file
which either must be released because it is not exempt or
should be released as a matter of policy. Often this is the
first time that anyone has looked at the file, even if it is
many years old, to determine if any of it can be made public.
Some material is often then released. If the requester is
not satisfied he or she can appeal. In that case the documents
are examined by another group of more senior officials including
lawyers familiar with the requirements of the Act. Often
there are then substantial additional releases. 21/
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If the requester is still not satisfied and has the
resources to persue the matter, a lawsuit is filed. A new
review then takes place. Others look at the documents
including lawyers in the Department of Justice or the U.S.
Attorney's office. As a result additional releases are often
made; still more material is often released when a
detailed index of the withheld material is prepared. Other
releases occur before and even after district court, and even
Court of Appeals arguments and decisions.
A request for documents relating to the CIA effort to
suppress the Glomar Explorer story illustrates this process
in graphic form. The CIA initially maintained that it could
not even admit that it had any such documents. Although the
district court accepted this argument, the Court of Appeals sent
the case back after expressing scepticism. After reconsidering
the government made public a set of documents shedding important
light on the relationship between the CIA and the press. 22/
Administrative Burden
In his testimony Ambassador Carlucci devotes many pages to
complaining about the administrative burden posed by the Act
and suggesting that relief is necessary for that reason as well
as the others presented. 23/ The CIA argument on administrative
burdens is wide of the mark on two grounds:
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-- The CIA burden is not greater than many other
agencies which are not seeking relief.
-- Despite the wide scope of the exemption sought by
the CIA, it would not reduce the burden of the
Agency very substantially.
The CIA according to Ambassador Carlucci has received
over the past four years an average of 4,744 FOIA, Privacy
Act and Executive order declassification requests per year.
It currently has a backlog of over 2,700 unanswered requests
and the figure he says is increasing. 24/
By contrast in 1977 (the last year for which comparable
data are available) the Department of Defense received 47,000
requests, the Department of Justice 19,000 and the Treasury
Department, 16,000.
The CIA estimated its incremental cost for processing
FOIA requests in 1977 at $1 million (and $1.366 million in
1978). The Defense Department spent more than $5 million in
1977 as did HEW and Treasury. Even the Department of
Transportation spent more than the CIA. 25/
Since the CIA declines to make its total budget public
it is impossible to tell if the proportion spent on FOIA is any
higher. However, the figures do not appear to be out of line.
Nor is there any reason to believe that comparative figures
for later years would be any different.
The CIA also objects to having to respond to requests
from the KGB and from those out to abolish the Agency such as
Philip Agee. The KGB argument is theoretical since there is no
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evidence that the CIA has received any requests from a hostile
intelligence service. There would be little objection to
permitting the CIA to summarily deny such requests. The problem
is that a foreign intelligence service could easily arrange
with any American to make its requests.
As for Agee, the complaint is clearly misplaced. Certainly
the CIA should not be able to turn aside requests because it
objects to the political views of the requester. The CIA asserts
that Agee intends to use the information released to hurt the
CIA. The Agency can, of course, withhold any information which
is properly classified or which would reveal sources and methods.
Agee, like any other citizen, is free to use whatever is released.
Moreover since Agee has requested only his personal file the
CIA would still have to answer his request even if its proposed
amendment were passed. 26/
If the CIA burden is not overwhelming the CIA proposal
would have little effect on it.
The CIA Annual Report for 1978 under the FOIA indicates
that only some 20-30% of requests to the CIA would be covered
by the proposed amendment. More than 50% of the requests to
the CIA in 1978 were for personal files and would not be affected.
Another 10% are requests under the mandatory review positions of
the Executive Order on Classification. 27/ Some 10%, according
to Ambassador Carlucci's testimony, are for the finished
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intelligence product. Thus the CIA administrative burden
would not be greatly reduced but the public would be denied
access to important information. Most of the important
information which is released falls within this 20-30%.
If the proposed CIA amendments were adopted the perception
problem would remain and the administrative burden would
remain but the public would learn much less about the CIA.
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FOOTNOTES
1. 5 U.S.C. 552(a)(4)(b). The CIA often declines to waive
fees and has twice been ordered to do so by district courts.
See Eudey v. CIA, 478 F. Supp. 1175, (D.D.C. 1978), and
Fitz ibbon v. CIA, No. 26-700 (D.D.C. Oct. 29, 1976) reprinted
iFreedom o information Act hearings before the Subcommittee
on Administrative Practice and Procedure, Senate Judiciary
Committee, 95th Cong., 1st Sess. (1978), p. 822.
2. CIA 1978 Annual Report on FOIA Administration, 2 April, 1979,
p. 5, cited as CIA 1978 Report.
3. Id. at p. 1. In 1978 the CIA invoked exemption (1) 280 times,
exemption (3) 408 times, exemption (6) 93 times and exemptions
(2), (4), (5) and (7) a combined total of 31 times.
4. The order now in effect is E.O. 12065, 43 Fed. Reg. 28949
(July 3, 1978). The President could at any time change the
criteria for withholding for all agencies or just for the CIA
by amending the Executive Order.
5. Ra v. Turner, 587 F.2d. at 1194-95. See generally
"Exemption (b 1)" in Marwick (ed.), the 1980 Edition of
Litigation Under the Federal Freedom of Information Act and
Privacy Act, (Washington, D.C.: CNSS 1979).
6. In one other case a court ordered material released which
the CIA asserted related to sources and methods but was not
classified. (See p. 5)
7. As we explain below that does not mean that no important
documents have been released as a result of FOIA requests or
litigation but only that when the CIA held firmly to its view
that information has been properly classified the courts have
been reluctant, to say the least, to second guess such deter-
minations.
8. Since the Supreme Court has interpreted that provision to
authorize secrecy agreements, U.S. v. Snepp, 48 U.S.L.W. 3527
(dec. Feb. 19, 1980), there may be a
bout its reenactment.
a
9. S. 2284 contains several additional provisions which would
expand the right to withhold information requested under the FOIA.
The first part of Sec. 421(d), for example, would greatly expand
the existing Sec. 403(g) and could be read to exempt all information
about CIA activity. It has apparently been modeled on PL 86-38
which has been interpreted to grant such authority to NSA. See
Hayden v. NSA, 608 F.2d. 1381 (D.C.Cir. 1979). This report does
notnot ihese additional proposals.
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10. Statement of Frank Carlucci, Deputy Director of Central
Intelligence, before the Subcommittee on Individual Rights of
the House Government Operations Committee, February 20, 1980,
p. 3. See also Impact of the Freedom of Information Act and
the Privacy Act on Intelligence Activities, hearings be ore the
Subcommittee on Legislation, House Permanent Select Committee
on Intelligence, 96th Cong. 1st Sess., April 5, 1979.
11. See e.g., in regard to the CIA mail opening program
Birnbaum v. U.S., 588 F.2d 319 (1978) (tort claim) and
Driver v. Hems, 577 F.2d. 147 (1st Cir. 1979) (constitutional
claim), and with regard to Operation CHAOS, the surveillance
of the anti-war movement, Halkin v. Helms, Civ. No. 75-1773
(D.D.C.).
12. See e.g., Frank Snepp, Decent Interval, (New York: Random
House, 1978) and Joseph B. Smith, Portrait of a Cold Warrior,
(Putnam, 1976).
13. Compare the French edition of William Colby's memoirs,
Honorable Men, (New York: Simon & Shuster, 1978) with the
American. The former contains information deleted from the
latter as a result of the CIA clearance process. See C. Marwick,
"The Growing Power to Censor," First Principles, June 1979, p. 3.
14. See e.g., Thomas Powers, The Man Who Kept Secrets,
(New York: Knopf, 1979).
15. See generally Frank Snepp, Decent Interval, op. cit.
16. Report of the House Select Committee on Intelligence
printed in Village Voice, Feb. 16, 1976, p. 85.
17. One of the few leaks on record which might have exposed
a CIA agent was a report relating to Indian plans during the
Bangladesh crisis. A finished intelligence report was leaked
to a reporter who published the information. When the story
was retold in the Powers' book, The Man Who Kept Secrets,
U. cit., pp. 206-7, it was revealed that t e source of the
information could only have been a member of the Indian cabinet
touching off debate and speculation in India about who the spy
might have been.
18. See 0 !ration CHAOS, Com arison of Documents Released
In Ha Wit the Fina Report 2 RI' Church
Committee, CNSS Report No. 104, (Washington, D.C.: CNSS, 1979).
See Appendix D.
19. See Christy Macy and Susan Kaplan, Documents, (New York:
Penguin, 1980), which reproduces many documents. Some of
these are from the CIA and were requested for the book even
though most of the content of the document had already been
made public. See Appendix E for an illustration.
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20. See joint letter from 150 national groups and others at
Appendix F. Is the CIA seeking sweeping amendments precisely
because of this use? Is the agency in a clearly discernable
slowdown in responding to requests from those it identifies
as its critics for the same reason and in the hope that the
passage of the proposed amendments will nulify the pending
requests?
21. See Usin the Freedom of Information Act: A Step by Step
Guide, (Washington, D.C.: CNSS, 1979T.
22. The documents are on file in the CNSS library.
23. See CIA 1978 Report, op. cit.
24. Carlucci, p. 22. See also CIA 1978 Report.
25. Harold Relyea, "The Administration of the Freedom of
Information Act: A Brief Overview of Executive Branch Annual
Reports for 1977," Congressional Research Service Report No.
78-195 Gov., Nov. 15, 1978.
27. Sec. 3-501 of E.O. 12065 provides that each agency shall
establish a procedure for a mandatory review for declassification
of any report that reasonably describes the information.
Requests previously made under the FOIA could be made under
the E.O. procedures if the CIA amendments have passed. This
would necessitate the same search and review but the requester
could not appeal an adverse decision to the courts.
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APPENDICES
APPENDIX B -- List of Books and Articles Released Under
the FOIA . . . . . . . . . . . . . . . . . A-4
APPENDIX C -- List of CIA Documents Released Under the
FOIA . . . . . . . . . . . . . . . . . . . A-6
APPENDIX D -- Sample of FOIA Documents as Reprinted in
(Macy & Kaplan, eds.), Documents, (New York:
Penguin Books, 1980), Illustrating the Value
of Full Documents . . . . . . . . . . . . .A-10
APPENDIX E -- Sample of a Document Contradicting the
Church Committee Report . . . . . . . . . .A-15
APPENDIX F -- Joint Letter Opposing FOIA Amendment. . . .A-19
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96TH CONGRESS
2D SESSION
.2216
4 SEC. 3. Section 6 of the Central Intelligence Agency
5 Act of 1949 (50 U.S.C 403g), is amended to read as follows:
6 "In the interests of the security of the foreign intelli-
7 gence activities of the United States and in order further to
8 implement the proviso of section 403(d)(3) of this title that
9 the Director of Central Intelligence shall be responsible for
10 protecting intelligence sources and methods from unauthor-
11 ized disclosure, the Agency shall be exempted from the provi-
12 sions of any law which require the publication or disclosure of
13 the organization, functions, names, official titles, salaries, or
14 number of personnel employed by the Agency. In furtherance
15 of the responsibility of the Director of Central Intelligence to
16 protect intelligence sources and methods, information in files
17 maintained by an intelligence agency or component of the
18 United States Government shall also be exempted from the
19 provisions of any law which require the publication or disclo-
20 sure, or the search or review in connection therewith, if such
specifically designated by the Director of
21 files have been'
22 Central Intelligence to be concerned with: The design, func-
23 tion, deployment, exploitation or utilization of scientific or
24 technical systems for the collection of foreign intelligence or
25 counterintelligence information; special activities and for-
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1 eign intelligence or counterintelligence operations; investiga-
2 tions conducted to determine the suitability of potential for-
3 eign intelligence or counterintelligence sources; intelligence
4 and security liaison arrangements or information exchanges.
5 with foreign governments or their intelligence or security
6 services: Provided, That requests by American citizens and
7 permanent resident aliens for information concerning them-
8 selves, made pursuant to sections 552 and 552a of title 5,
9 shall be processed in accordance with those sections. The
10 provisions of this section shall not be superseded except by a
11 provision of law which is enacted after the date of this
12 amendment and which specifically repeals or modifies the
13 provisions of this section.".
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96TH CONGRESS
2D SESSION
.2284
Section 421(d)
4 421 (d) No provision of law shall be construed to require the
5 Director of the Agency or any other officer or employee of
6 the United States to disclose information concerning the or-
7 ganization or functions of the Agency, including the name,
8 official title, salary, or affiliation with the Agency of any
9 person employed by, or otherwise associated with the
10 Agency, or the number of persons employed by the Agency.
11 In addition, the Agency shall be also be exempted from the
12 provisions of any law which require the publication or disclo-
13 sure, or the search or review in connection therewith, of in-
14 formation in files specifically designated to be concerned with
15 the design, function, deployment, exploitation, or utilization
16 of scientific or technical systems for the collection of intelli-
17 gence; special activities and intelligence operations; investi-
18 gations conducted to determine the suitability of potential in-
19 telligence sources; intelligence and security liaison arrange-
20 ments or information exchanges with foreign governments or
21 their intelligence or security services; except that requests by
22 United States citizens and permanent resident aliens for in-
23 formation concerning themselves, made pursuant to sections
24 552 and 552a of title 5, shall be processed in accordance
25 with those sections.
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MEMORANDUM
SUBJECT: List of books and articles based entirely or partially on CIA documents
declassified through the Freedom of Information Act.
Donner, Frank. The Age of SurveiUatce. New York:
Alfred A. Knopf, Inc., 1980. (forthcoming)
Halperin. Morton H. at al. T e Lawless Stare. New York:
Penguin Books, 1976.
Wise, David. The American Police State. New York:
Random House, 1976.
Horrock, Nicholas M. "New Law is Dislodging C.I.A.'s
Secrets," New York Times, 5/14/75. (delimitation
agreement between FBI and CIA; CIA file on Socialist
Workers Party; CIA study of U.S. youth movement,
Restless Youth)
Kihas, Peter. "Rosenberg Files of C.I.A. Released,"
New York Times. 12/5/75.
. "30 Accused in Suit of Opening Mails," New
York Times, 7/23/75. (request for personal file reveals
requester was target of CIA mail opening)
Knight, Althea and Bonner, Alice. "Fairfax, Montgomery
List Aid Received From CIA," Washington Post.
1/ 14/76. (aid to police departments)
. "C.I.A. Documents Reveal Presence of Agents on
'Problem' Campuses," New York Times, 12/ 18/ 77.
Thomas, Jo. "C.I.A. Reporting on Student Group After
Cutting Off Financial Help," New York Times,
12/18/77.
. "Cable Sought to Discredit Critics of Warren
Report," New York Times. 12/26/77.
Richards, Bill. "CIA Infiltrated Black Groups Here in
the '60s," Washington Post. 3/30/78.
Sommer, Andrew and Cheshire, Marc. "The Spy Who
Came in From the Campus," New Times, 10/30/78.
Hersh, Seymour M. "C.I.A. Papers Indicate Broader
Surveillance Than Was Admitted," New York Times,
3/9/79.
. "C.I.A. Used Satellites for Spying on Anti War
Protesters in U.S.," New York Times, 7/17/79.
Volkrnan, Ernest. "Spies on Campus," Penthouse, October,
1979.
Foreign Policy
Cook, Blanche Wiesen. Missions of Peace and Political
Warfare: Eisenhower's Cold War. New York: Double-
day, 1981. (forthcoming)
Morgan, Dan. Merchants of Grain. New York: Viking
Press, 1979.
Shawcross, William. Sideshow: Kissinger. Nixon and the
Destruction of Cambodia. New York: Simon and
Schuster, 1979.
Winner, Lawrence S. The Americans in Greece: 1943.1949
New York: Columbia University Press, 1981. (forth-
coming)
Wyden, Peter. Bay of Pigs: The Untold Story. New York:
Simon and Schuster, 1979.
Bernstein, Barton J. "Courage and Commitment: The
Missiles of October," Foreign Service Journal, Decem-
her 1975, Vol. 52, no. 12.
Bernstein, Barton J. "The Week We Went to War," Bulletin
of the Atomic Scientists, February 1976, Vol. 32. no. 2.
Bernstein, Barton J. "The Week We Went to War.
American Intervention in Korea," Foreign Service
Journal, January and February 1977, Vol. 54, nos. I
and 2.
Bernstein, Barton J. "The Policy of Risk: Crossing the
38th Parallel and Marching to the Yalu," Foreign
Service Journal, March 1977, Vol. 54, no. 3.
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Bernstein, Barton J. "The Bay of Pigs Reconsidered,"
unpublished paper, 1980.
Burnham, David. "C.I.A. Said in 1974 Israel Had A-
Bombs," New York Times, 1/27/78.
Pelt, Stephen. "When the Kitchen Gets Hot, Pass the
Buck," Reviews in American History, December 1978.
Pelt, Stephen. "Truman's Korean Decision-June 1950,"
for International Security Studies Program, Woodrow
Wilson International Center for Scholars, Smith-
sonian Institution.
Witmer, Lawrence S. "American Policy Toward Greece
During World War II," Diplomatic History, Vol. 3,
Spring 1979.
Behavior Control and Toting of
Drop and BloIo Ial Weapon
Marks, John. The Search for the "Manchurian Candidate. "
New York: Times Books, 1979.
Shellin, Alan W. and Opton, Edward. The Mind Mani-
pulators. New York: Paddington Press Ltd., 1978.
Watson, Peter. War on the Mind. New York: Basic Books,
1978.
Marro, Anthony. "Drug Tests by C.I.A. Held More
Extensive Than Reported in '75," New York Times,
7/16/77.
Jacobs, John. "CIA Papers Detail Secret Experiments on
Behavior Control," Washington Post, 7/21/77.
Horrock, Nicholas M. "Private Institutions Used in C.I.A.
Effort to Control Behavior," New York Times, 8/2/77.
Horrock, Nicholas M. "Drugs Tested by C.I.A. on Mental
Patients," New York Times, 8/3/77.
Wise, David. "The CIAS Svenplis," Inquiry, September
18, 1979.
"Open-Air Testing of Biological Agents by the CIA: New
York-1956," American Citizens for Honesty in
Government, December 5, 1979.
"Open-Air Testing of Biological Agents by the CIA:
Florida-1955," American Citizens for Honesty in
Government, December 17, 1979.
Boyle, Andrew. The Fourth Man. New York: Dial Press/
James Wade, 1979.
Smith, Richard Harris. Spymasteri Odyssey: The World
of Allen Dulles. New York: Coward, McCann &
Geoghegan, 1980. (forthcoming)
Corson, William R. The Armies of Ignorance. New York:
Dial Press/James Wade, 1977.
Epstein, Edward Jay. Legend The Secret World of Lee
Harvey Oswald. New York: Readers Digest Press,
1978.
Macy, Christy and Kaplan, Susan. Documents: A Shocking
Collection of Memoranda, Letters, and Telexes from
the Secret Files of the American Intelligence
Community. New York: Penguin Books, 1980.
Persico, Joseph E. Piercing the Reich: The Penetration
of Most Germany by American Secret Agents During
World War Il. New York: Viking Press, 1979.
Weinstein, Allen. Perjury: The Hiss-Chambers Case.
New York: Alfred Knopf, Inc., 1978.
Jacobs, John. "Rutgers Received CIA Funds to Study
Hungarian Refugees," Washington Post, 9/l/77.
Richards, Bill and Jacobs, John. "CIA Conducted Mind-
Control Tests Up to'72, New Data Show." Washington
Post. 9/2/77.
Reid, T.R. "Range of Mind-Control Efforts Revealed in
CIA Documents," Washington Post, 9/23/77.
Horrock, Nicholas M. 'C.I.A. Documents Tell of 1954
Project to Create Involuntary Assassin," New York
Times, 2/9/78.
NOTE: This is a representative listing of books and articles
based on CIA documents released through the FOIA, and
is not intended to be exhaustive.
Some releases to historians were made in response to
declassification requests. Documents released in this
manner are also available through the ?01A.
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APPENDIX C
Center for National Security Studies
C. CENTRAL
INTELLIGENCE AGENCY
C-1. COLBY REPORT: D.Kwbo. 24.1974; 64
P.O.. A Int. fro. Colby to tM Pro dot
reprd.o . Decamh. n. 1974 Nro York
Time .nkls ".clog CIA dow.tk
1111.11 stn. .160111... Nina amen..
.6.6411 to the letter, which I d.de dbndo.
of the Hue." Plan. Id.n...y props.., .
wunterwellip.., offk.. Srhk.ry.Y request
asking *'.y wrlisarwal-chartaradICLA
Kuvkho lost, be shied. C-SLIT. and.
March S. 1974 ...no sanctioning Operation
CHAOS. 66.64/00py)
C-S. This stria of donrownts, llhrough C-S.)
wen ref.rd to a a collars on CIA dicarroactic
Kti.uk. pn.twd by Dirotar Colby to the
S.naw Appop4W.w Cormorant on
Imu.y
15. 1973:
C-SI.). ORGANIZATION AND FUNCTIONS,
DOMESTIC OPERATIONS DIVISION AND
STATION (GODS): Fa1rwry, 11, 1963: 1 pap.
Th. whaion of that DODS k dw.lbd o
,('"c?io; .ryp..tl.s .rd wordin.4ng
uir.de.tl. .pnll.td .01166.0 ... within
eh. Unild Sootw.pinl foreign tarp...
)B.10/00Fy)
C-file). REDESIGNATION OF
COMPONENT: Janu.y 24,1972; 1 pM.. A.
ana.gKey, ... ha. Tho...
W mmasth . Dep..ty Dln..r 1. Flow.
4..0"1164 the chap a the 0.. d the
Doo.4ic Op.atwns Division (DO) to powipr
RKOUras Div1.a. (PIU. (S.10/copy)
CA(.). CORRESPONDENCE BETWEEN
DAVID GINSBURG. EXECUTIVE DIRECTOR
OF THE NATIONAL ADVISORY
COMMISSION ON CIVIL DISORDERS. AND
RICHARD HELMS. DIRECTOR OF THE CIA.
Augur 19. 1967 and Spl..b. 1. 1967: 3
paps. CaM.w. r10... by G..b.g f.
ldonnacwn . any dull dk.Mr h.Mli....
IM CIA co., ha.. and lobe.' reply.
(B.30/wpy)
C-Nd). RESTLESS YOUTH: Sp...b. 1964,
No. 0613164: 41 paps. TM eep.t malt'.. tb.
wwroala.) youth ."oust.-t of the law
1960.. studs. I)..o{olapcal bass, and
.temple to underel.d its wromoso, plop....
Fol., ..d po.lbla ramRk.w.. The reFar
due. 164 CIA Rights Mov.o.l .f tic. .rly
196M .0 pro0.. 1. didded. aver a IM
dKade -bit 00nfn sail ...I patio at car only,
00..01 oo .plahlp Political chap. S.
also C-11Ib11f1.lo/cpyl
C-3I.). MEMORANDUM FOR ALL CIA
EMPLOYEES FRbM JAMES R.
SCHLESINGER. DIRECTOR: May 9. 1973: 2
paps. Th. DlKnor regd. 1. that .11 CIA
Forward np.n to Kiln any pest or pr"a0t
-Mills which U. .6411a, the Apncy.
Man., and din... that if w ord. I. gWw w
a CIA employ.. which b incondwwt with lice
ARw.y's char.. the .wploy...hould repo"
de lneldwt 1.16. Din..... S. also Ca.
5.10/00py)
Cs. DELIMITATION AGREEMENT OF 1943:
Sepl..Jer and Oct.b. 1943: 7 p.p.. The
dowwmn co..dwl..n .parr.rt betwasna that
PSI and IM CIA p0. 6140{ CIA 00111.. with
Emlpe Swop and hdhIdwls in the United
Slo.. (5.70/copy)
CI. "POTENTIAL FLAP ACTIVITIES."
MEMO TO WILLIAM COLBY FROM
WILLIAM V. BROS. INSPECTOR GENERAL:
May 11. 1975: 26 Pos. Th. (lot patio of
the M. dbrowK CIA contacts with
Wat.pw 6g... ...d CIA Pwlkip.t. in the
Int.Ryeee Ev4wlan Cow-in. and Staff.
.a.bhbMd to nowas dom.nk Inaellipna
a.dlw. TM 00-A poet.. of the M-
000..,1 Supp.1. R.I EWN, Procurement,
Costs. Activities Dinned Aping U.S.
CIII..... and Collection Activities.
(61.65/wpy)
C-10. FORMAL MEMORANDUM ON
RESPECTIVE RESPONSIBILITIES OF THE FBI
AND CIA IN THE UNITED STATES:
F.En..7 7,111,116; 1 paps. Thh .n .o .fend
to . pp 37 of the Rodufeler Commid.n
Rapon. Th. www ..woro nal, id..utbn not
6dudd N that R.PKt. (11.15/copy)
C-M). FAMILY JEWELS-ACTIVITIES
CONSTRUED TO BE OUTSIDE THE CIA
CHARTER: May 1970 - May 1971: 65 Pos.
DO I...a Shcbckl a'. ibooths, of may 9.
1m l.. C-We11 reg.e.ld CIA ..payses to
row .d.Rk. whkhi 001111 b. c.4d.d
.udde 0. .Aster of the ASK y. Th. requst
,.land " Padd as d g rolls dbl.
activities, adudbq do.estk .urv411an.
.peat{.., a..yK.nts with A.e.ican inns,
awonw.. 1. local Poll. dpa".wlt....d
Off). of S.o lly ..ppo" to the Bunau of
Narcotics Ind D . onou. Dwp. (116.SO/00py(.
?C-11M11. RESTLESS YOUTH: 1964:145
Paps. A v...n of IM CIA's 1964 atudy of
w.tdw d. studwt dkstdenca which b.d.da .
199-Pope ..tan reporting on ...dons
move.nw a 191.Mp. .ount"a. Part I is
Idenikd to C-Xd) .ceps chat it includes tarns
pholMraple and a. Pop.ph dehwd fom
that ver4.n. (S14.SO/.opy( A-6
? C-11(cl.' FAMILY JEWELS" MEMORANDA:
1964 and 1973: 19 pars. M--& to "
DCI how .Wow office n powks to his
request that CIA .etiv6hs which way b,
Dow6 the Ap.y. shown, be rapon.d. TM
nenwand. .hew that tM Agency anarnined
.atollt, ph..papa I. wallysing domestic
dull dourbanca.. that ,ho Dowaltic Contact
Service colkc.. idor.nnl.n do loreig . 00/.0.0
studying in the U.S.. and that in 1969 .ob 19711
ee-K.I ..di. wen pap ..d . black .Mica)
anowentents in Ill. CadbMan. o...1 which
(.owed on possible bobs to the U.S. black
pow. w.vement. al.RO/eepyl
?C-15/15. CIA/DOCUMENTS ON PROJECTS
RESISTANCE AND MERRI MAC; 1956.1m:
1997 pow. Doolown . in this ale. r.kawd to
CLASS 11woush chat PDIA, ew.i.. nu..b..4
dlwa ip.odn (oo., a addh1... to, cur .0000.
of 1he ProIK.. in tM R.ck.f.ll.o sad Chnwh
Repave. Th... roast to the we d i forwasb
in Resistance: tic.. op. of Reost.n.: IN...
of Amy oo.taalR)p.e Wonn.tion in
0. 1.... repo".: a pr.Powd .p...n .f
Manioc I. 1964: and Mond.,.. eWallwn
...Me 164 Washington, D.C. .K.. 6155.01:
.ekcted doooo w.. $3.50)
Call. RESTRICTIONS ON OPERATIONAL
USE OF ACADEMICS: 1970 wall IM: It
pqw. To.. H.....'. 1970 ..w. id.Mp
DCI Nd.n tic. mtrlnl... ' is u. .f
.10-.11 tally... Pd-ft W&d*- had
be.. lYtd .nd pdd.16,. rpwwd I. 1m
Prohibiting Ih. Agway hueas contact foams of
U.S. Edotanal K PhOON .010,40.7
.4we0w. 6.50/wpy)
C-19. PILES ON CHE GUEVARA. 190L1m:
194 paps. A .10.40 1.00 CIA for all film an
Ch. Co .. and o... p.dod . .P-
fro.. this Stave Dap., PSI, DIA. and N..y.
TM foe 411011.. .coon.. of Cl s'. alkpd
.044111.. I. C.M. last Assist. AM. std
Viwws: ..oo.oo lal..pen. d hh Both:
.1111 .astral .00010.0 d Kb cps. std
n celan )n BoUw:a in 1967. (615.64/c.py(
C-11. TWO MEMORANDA FROM CIA
GENERAL COUNSEL TO CIA DIRECTOR:
pro p.ary, 1967 - Apo 196T: 9 pap.. The
tic.. mw.rod. Ives CIA Gnod Counsel
L.wr..e Tow. Is 4e Dir..t. dac... the
Ig.liry, .of .ubewo. and ob.M.. and
p.ra data.7 c ld-ws KHMtls. Th-
mamorw.d. ague that 0.0.11 p.alb. M
lee. do*. the lack of wnpadoold
autlan.tl.n In tic. 1947 NBC Ad.
60.00/w")
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C-12. NATIONAL INTELLIGENCE
ESTIMATES RELATING TO THE CUBAN
MISSILE CRISIS: October 19 and 20, 1962: 30
page. These papers comet the problem of
sewing the .lratgk and political isnpik.tion.
of the Soviet III are buildup N Cuba. They
provide a historyof the military Windup,
dise w its implications. and non that the
posaibilinles exist Iw an o.pamlen of the
buildup. The report, con, the Sovite
objective is to prove that the U.S. can
longer prevent a Sevkl pn,sence in 1k,
hemisphere, and discuses the 11=14, affect
d a waming (S3A0/cepyl.
C-24. CIA RELATIONSHIPS WITH THE
UNIVERSITY OF CALIFORNIA: 19569977:
914 pager Nethe. Gatdala received the tike
Through requests and Iltlpten undo the
FOIA. They document CIA e.Iatlenships and
omrae. with UC for eseaeeh In pal01e1
. Chinese and SI.nk.OWNS. phyain.
dcat other holds: CIA use of aoademn coves:
and covert recrvking.
C-35. CIA RELATIONSHIPS WITH
DOMESTIC FIRMS. 1975.1976: 67 paps.
Thew dmunwnn. r.I...d in Halperin o. CIA.
provide a limited look at the Agency'.
wlali...hip, with the Arnold & Porter law
firm. hired to reprewnl it dueag the 1973-1976
Senate investigation, and with Robed R.
Mourn and Co. Ti,. CIA used Mullen Co.. a
public relations firm which hued E. Howard
Hum in 1970, for cuss, and other purposes.
(56.70/ropy)
C-SR. CIA ACTIVITIES IN LAOS: MEMO
FROM CIA GENERAL COUNSEL TO
DIRECTOR, Oelober 30, 1969: 2 page. The
resulted from Senator Fulbrighi s
ownw, awnion that the CIA I "waging war" In Law.
The Gn.ral Counsel proceeded to Inform the
drecew of CIA operations in law (which he
cheactericed as asaleiry IM native population
to pevent a military takeover) and of the
Agency's authority to carry out such
operations. (5.201copy)
C-30. PROJECT MUDHEN-GOVERNMENT
INVESTIGATIONS OF JACK 'NDERSON:
1972: 39 pages This fie includes a copy .11k,
complaint Anderson filed aplmt Ninon.
Klein er, Helms and several others. Also
Included I.. paper, "Chronology of a
Complicacy." which summarise the
pvemment'. Investigation of An n. and a
stein of five memo. detailing certain aspects of
Project MUDHEN including operations. lop.
and phato.. (13.90/copy)
?C-31. DOCUMENTS REFERRED TO IN
"COVERT ACTION IN CHILE 1963-1973":
September 1970 and undated: 11 pages. This
fie contain. thee CIA documents elneed to
CNSS through the FOIA which describe events
N Chlk during September 1970. Th. sPI'
coe.sem alleged anampts by the Chfean
Communist Panty to take over media outlets,
spills within the Christian Demenratlc Parry.
the growth .1 "Path. y Libenad." and
Allende'. character and carer. (51.10)
033. CIA DOCUMENTS ON THE
DISAPPEARANCE OF PROFESSOR RIHA:
April 1969 - A.S.at 1975: 230 pages. The
disapRaram. I. April 1969 of Dr. The-.
Riha, a natoraliaed U.S. cul.en bons In
Caechodavakia who ern . professor of Rus.iar
history al the University of Colorado. nu.ed
considerable publicity, and prompted a CIA
Investigation. The documenn concern Ike
-explained disappearance and the subsequent
Involvement of Univedty of Colorado
President Joseph Smiley, local new. rep-w.
and the CIA in Investiplion. of 1. m.0-
Corrwpondeno from William Colby to the
Senate 1.1.1lip.., Committee ..plain. the
limited roe of the CIA In an affair that "was .
dmneek conc.m and beyond the jurisdiction
and responsibility" of the Agency. News
verap ca-emiN the disappearann i.
included. 633.00/copy)
C.36. CIA MAIL OPENINGS: 1971-1973: 3
papa. The documents include two meeting.
conducted by CIA D votes Helms on
HPLINGUAL. the Agency's mall opening
protect... well as a 1973 statement by Direttor
Colby concerning termination of the project.
The Helms memoranda explain the Agency's
collaboration with the Postal S.M. and the
FBI: participants in the meetbeg decided to
continue the props, despite reservation. over
possible adverse publicity and embatrassmetn
should the mail opening whence surface. The
monandum for the wend".gned by Colby
expresses his drain, to transfer the *Mellon to
the FBI and directs that the project be
suspended until appropral. resolution of the
problems involved." (S.80/copy)
C-26. OSWALD AND THE CUBAN
CONNECTION: April and May. 1973:27
pages. This report n,pee.oea a review of Item
in the CIA. Lo. Hrvey Gerald Plle'eegedbg
allegations If Cerro Cuban involvement I. the
John F. Kennedy awdnatioe.' The analyet.
r rpuekd by the Rockefeller Commission.
The rep." seeks. In pan, to explain Gwald'a
"feelinlis toward and relations with Casein's
Cuba." (12.701copy)
C-37. CIA DRUG EXPERIMENTS: cep to July
25. 1973: 146 pager. A Collection Of 39
documents -ailing various CIA profaete
elating to drug and behav'erd expniewnes.
The file include tame documents from the
Frank Olson case (see C-25). as sell --
document. deseriklng MKULTRA, the CIA's
top'.ecret project to Investigate "the
mipul.tion of human behavior." The
research I. said to "Cam by many in
medicine and totaled field. to be pefewonally
unsthinl. A final phase of the testing of
MKULTRA produces; plots red rights and
Interels of U.S. cftirns I, Jeopardy."
614.901ropy) IThe settee 40.000-page wkees
of CIA behavior control documents I. available
by appointment for m.pectien at the CNSS
Library I
CJ3. DIRECTOR OF CENTRAL
INTELLIGENCE DIRECTIVES: 19441976: 255
pen. The directives me preceded memo.
from DCIs over ? period of twenty Years. They
vet Ief.ligeno.-related issues. Including
procedures for the Intelligence Advfory
Commutes, control of dimemmatloe of feeler
intelligence, security policy guidelies on
liaison relationship, with fIrlign intelligence
oegamleatioea, recognition, of exceptional
service to the Agency, and eoploit.tion of
foreign language publicatioe. Also included
are deetives elating to coordination of coon
coBsctlm abroad, dometk exploitation of
noopvernmental orpnerti ons. and
prodrretien of atomic energy intelligent..
(1211.50/copy)
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C-37. CIA-JUSTICE DEPARTMENT
AGREEMENT REGARDING
INVESTIGATION OF POSSIBLE CRIMINAL
ACTIVITIES ARISING OUT OF CIA
ACTIVITIES: 1956-1975. 19 pals.. The
orandum from Justice Department Counsel
L.S. Houston In th. Director of Central
Inrelligmce explains the "balancing of interest
between the duty to enforce the low ... and
the Director. responsibility for protecting
intalliterue wurcn and method.." Included isa
brief summary of Iwenry carom in which
o,okriom of criminal stelae were reported to
the D.Mrlment of Justin between 1954 ad
1975. A detailed eoamination of circumstances
nvolvd in the drug prosecution of Mr.
Purraporn Khramkhsuan, former CIA
employ". I. ale included. (51.90/copy)
C-M. DIRECTOR OF CENTRAL
INTELLIGENCE REPORT TO THE
PRESIDENT CONCERNING DOMESTIC
OPERATIONS: August 1967 - July 1975; 70
pat. The Dlrmom of Central Intdllteen,
with the approval f ,h. President. releud
,he Director'. report of 24 December 1976 to
the Preddml. including the 'noon- 000,01 $
mater, std d to the Nate York Tbne ankle
of 22 December allegi. CIA inwdvmtmt in a
nuaww' IIbPI domestic inlellyence effort. This
nkaro is s follow up t. the dacnsim to release
the Rockefeller Comm a mn report N view of
the public inters., in this matter." The b.adth
of the CHAOS op"Hkn I. diwkaed in the
. of m.morada .d brfeffng pop..
included in them documents. (57.00/ropy)
C.39. CIA CONTRACTS WITH THE
UNIVERSITY OF CALIFORNIA-SAN DIEGO:
1966-1976: 121 page.. Copts of ? negotiated
act between the CIA and U. of Cal. San
Dingo. describing completion data. scope of
work. laarion when research will be
codueted, delivmbk teem. and cons. Th.
CIA contr.et. were for research in the field of
Image processing, a "view of Soda
Geochamical Werature, and ? study of
aprkullure In Communist China. (512.10/copy)
C40. THE CIA AND LOCAL POLICE: 1967-
1973: 177 path. A write of memo and letters
concerning direct CIA ad,ann to 12
municipal and/or county police departments
including those of New York. Ins Anted..
Boston. and Wadingem. The dounwnt, race
the history of CIA training rominme in photo
and audio sunrudlitince. rcotk., and "radical
amorist" control. (517.70/copy)
C-IS. SECRET LEGISLATIVE HISTORY OF
THE CIA: 1967-1948; 163 pate. Theta
daumente wvel the nma congress oral
testimony of the firs two Director of Central
Intdli/ence, U. General Hoyt S. Vanderberg
and Rear Admiral R.H. Hllknkoetter. Director
HRknkoarer's April 196$ testimony before the
House Armed Services Commli ere describes the
problems which the Rdgling intelligence
agency, faced I. its fits two yeas. The
Vandenberg testimony wit pwsmtd to the
Smote Armed Service. Committee in April
1947 in support of the National Security Act of
1947 which provided for udlknion of the
armed s.vkes and Mablishment of the CIA.
(S14.30/copy)
'C-41L CIA/RESISTANCE/BLACK STUDENT
UNIONS: 1969-1971; 33 page.. This fit, was
rskawd to rew"cher Mum Glass following a
ragast for CIA film on the Black Student
union at lb. Univenuy of Callfomia al Sane
Barbara. The document. show h
Projen
R"iwann and olh" CIA propame ngulady
used infonn.nte. ITh. Church Report staled
that Raigonce did not run unilateral informant
opmtton..-Ed.] (53.30)
'C-45. CIA FILE ON UNIVERSITY OF
MICHIGAN AND CENTER FOR CHINESE
STUDIES. 1965-1976: 279 pates. This file wa
requested under FOIA by the editors of
Mkhig.n Daily. It document. cudidanli.l
mnunn between 0oriou. CIA meorch offices
end Chin. wholan at the Unfvmfty of
Alp,. It elw shows the Agencys attempt
to maintain aodemk conlactc M a period
when the propriety of clarified govemmmt
rewarrh we. tncreadngly called into question.
A 1966 CIA memo In if. file mute: 'If .
vmity, within to dpal.le provkow or
qualiliution, we will be glad to consider that.
The unie"alty, treed only sty what they an.
(527.90/ropy)
'C-4o. CIA/RESISTANCE/PEACE AND
FREEDOM PARTY; 1961-1976: as pye. Th.
file wa obtained by the Peace and Freedom
Party under FOIA. Th. Party wee. an obits .1
CIA domail, surv.Bl.nce rurde, Profeel
Resistance. This file .bows that wow than
50,000 nanws of PFP number, from . ink
cow (California) coon tndroed by Refstance:
the figure glen by the Church Committee was
12-I$, 0 n.mn nnimwide. Thee Yd.-e.
wen. Memel al least n low a May 1976.
(5/.50/copy)
'C47. CIA/POLICY ON RELATIONSHIPS
WITH JOURNALISTS/MATERIAL SENT TO
INTELLIGENCE COMMITTEES; 19734976:47
False . Aft" litigation under POIA, these
dose.) wen tetrad to WormlW Ildllh
Milk, I. n.ponw m a request for .B material
on CIA ua .1 Journalists which bad brim west
to the Ho- and Senile IntelllNnn
Committee and the Rockefeller Commission.
The fit. contain. link factual behommuce, bit,
doe. Include .lmenwnte of CIA policy. Caret
meins in the file I. the possibility ,has
CIA contacts with journalists were mom
atmdve Than reported to he Comments,.
(51.70/copy)
C-56. CORRESPONDENCE OF VICTOR
REUTHER INTERCEPTED BY THE CIA; 1968:
11 gapes. File items of Victor Ratchet's
correspondence intercepted I. 1966. Al that
ifmo an official of the United Auto Workers
(UAW). Reuther'. cow won also an
HTUNGUAL's "watch IM" for wR interests.
from 1969-1971. (51.10/ropy)
C-05. CIA DISTRIBUTIONS TO
ACADEMICS; 1976, it pain. Lists of more
than 40 college and univeNtles to which the
CIA root ii-classified pubholkni poducd by
he 0069 research breach on Scupper
Personnel. international smother. and other
wbiecte. 151.10/copy)
C-SI. INTERNATIONAL TERRORISM IN
1976: July 1977; 22 papa.. An analysis of
roods In inwrnation.l lmori.w which finds,
among other thing, that while the numb., of
terrorist incid"' inmaad in 1976' the
number of .m involving kidnaping and
hotagn, and the proportion of ass directed
apahW US citirens and property, declined.
Cuban file fomatiom emoted se mong the
mow anive and moat distuplke terori0
poop..' (52.20/copy)
C-el. DCI TURNERS STATEMENT ON
HARVARD GUIDELINES: Augur 1977: 3
Papa. Turner states that the CIA will isina.
Harvard'. rpuirement that university officials
be informed of all CIA centers, with univ0Nty
personnel. and dodge the issue of mvm
ncrui nwnt on oampe. (S.30/copy)
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C43. STUDIES IN INTEWGENCE: 1971?
IM; 297 M9n, 5..9,1 9. 9r..lo.17 d.r1kd
.o.d...nd 33 kook -W- wcW.n Ier
ctmdmion within tM InfiISw.. Comowuilly.
Sukk.1...ry. Irom . P??l ?w .1 U.S.
I-.l.mwnl I. Vlwn.m. n I. .w d Iqk N
inl.lli5mm .n.lysi.. n . n.I.. at AE.'.
InsiM 1M C.wo.ny
CM. CIA ASSASSINATION PLOTS:
MEMOS ON TRUIILLO. CASTRO. SOUTH
VIETNAMESE LEADERS. BELGIAN CONGO
LEADERS. MESSAGES CONCERNING
TRUIILLO; 1960.1970. 127 9"n. CIA
di. uwi.ns and Planning of .r4n.tkn ylels
onnm1.1 TnNIIo. C.kro. .nd S. Vlwn.llwr
.nd h151.. Cory. k.d... CIA 45mk dkwr
,uenw.l our.emn a wch .rnln.S....ad
wM1 dfon 1ho .ruin.tbro world how N
tho.. mumrin. IS11.70loopy).
C411. CIA USE OF ACADEMICS. 1967-1975;
Ids Fyn. R.k.wd lhre.* S1y.1" undo
1h. POIA. Ihn. docomml. at
infmrtlon
on 0P?n ad raven CIA..oN..Wy
r.l..emhlp for P?rPos?s N ,.....d..
r.w,hrmnl..d wndlkn...4 pod...
dlnml. (514.501copy)
CM. GLOMAR EXPLORER STORY; Inm..y
1974. March 1975; 221 P.M. AS.nry
d.comot. shorty DCI Coby'. .ymolo
.Hem to k.p tM Gkmm Epl.n. amy e.1
.1 the P.P.n by brkloy rpmnn . d .dh.n
en Ik kp.n.m. -m ?. 1190.1 ..wwly. 7M
w.ry wn hold for msn th. t . y..r thnyh
1M ,p .. tkn of 1h. Mon York Tkw.. L.
A.k. Ti-. Wnhb/ow Pert. Arw/.
M.NIn., 1inw. N.r.w.k. CBS. AP. UP,
and mhn mw. 9rPnknlm.. TM 111e owd.ln.
1M ImidmkI 6.1..1000 by Coy .hot 1M
A5..oy o . pmdwlm I. eku111 hdmin.11 ..
Isu.IS/wyyl
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APPENDIX D -- Illustrating the value of reading the full
document even if document was discussed in Congressional Report.
Recent congressional committees have reported on a
number of improper or questionable CIA activities. But even
acknowledging the accuracy of these reports, the release of
CIA documents through the Freedom of Information Act has made
valuable contributions to public understanding of those
activities and of important issues which they raise.
These primary documents often contain a richness of
detail that cannot be conveyed in summary form. They allow
once secret activities to be placed in context and their
implications better understood. Even when they contain no
new factual information they may illustrate official
attitudes and assumptions in important ways. One example
is former CIA General Counsel Lawrence R. Houston's 1969
memorandum concerning the constitutionality of CIA
paramilitary operations in Laos.
According to the Church Committee, the CIA in Laos,
beginning in 1962, "implemented air supply and paramilitary
training programs, which gradually developed into full-scale
management of a ground war." 1_/ This operation "eventually
became the largest paramilitary effort in post-war history," 2/
until in 1971 the burden of expenses in Laos was turned over
to the Defense Department.
The Committee referred to the operation in Laos -- and to
Houston's memo -- in discussing whether large paramilitary
actions based solely on Executive authority are an infringement
of Congress' power to declare war. 3/ Referring to the
memorandum in a footnote, the Church Committee wrote:
And, in 1969, the CIA General Counsel wrote
that the 1947 Act provided "rather doubtful
statutory authority" for at least those
covert actions -- such as paramilitary
operations -- which were not related to
intelligence gathering.
Houston's memorandum was prepared in 1969 in response to
Senator William Fulbright, who raised the issue of whether
largescale covert paramilitary operations are constitutional.
It illustrates the lack of seriousness with which the CIA
treated the problem. Houston begins by playing a game with
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definitions and ends by begging the question with an appeal
to Presidential authority. "If Senator Fulbright were right
in saying that we are 'waging war' in Laos," Houston writes,
we would indeed have a constitutional question.
A formal declaration of war requires action by
the Congress. I know of no definition, however,
which would consider our activities in Laos as
"waging war" except Senator Fulbright's. We
have no combatants as such, although the Air
Force pilots doing the bombing come close, and
indeed our people on the ground would probably
not be entitled to the technical protection
of the Geneva Convention for prisoners of war. . . .
. . . . It is obviously futile to argue with
Senator Fulbright along these lines, as his
quarrel is with the Presidency, not with this
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30 October 1969
MEMORANDUM FOR: Director of Central Intelligence
SUBJECT: Symington Subcommittee Hearings
1. This memorandum is for information.
2. If Senator Fulbright were right in saying that we
are "waging war" in Laos, we would indeed have a constitu-
tional question. A formal declaration of war requires action
by the Congress. I know of no definition, however, which
would consider our activities in Laos as "waging war" ex-
cept Senator Fulbright's. We have no combatants as such, al-
though the Air Force pilots doing the bombing come close, and
indeed our people on the ground would probably not be en-
titled to the technical protection of the Geneva Convention
for prisoners of war. We are assisting with materiel, advice,
and a fair number of bombs in the efforts of a native popula-
tion to prevent a military takeover to which it objects.
There are any number of precedents throughout history for
doing this-by executive action without any formal declara-
tion of war or execution of a formal treaty.
3. As for the authority of this Agency to engage in
such activities, I think you were probably exactly right to
stick to the language of the National Security Act of 1947,
as amended, particularly that portion which says that the
Agency shall "perform such other functions and duties re-
lated to intelligence affecting the national security as
the National Security Council may from time to time direct."
Actually, from 1947 on my position has been that this is a
rather doubtful statutory authority on which to hang our
paramilitary activities . . . opinions, we have the neces-
sary statutory administrative capabilities to do the job, and
if we get the proper directive from the executive branch and
the funds from the Congress to carry out that directive,
these two together are the true authorization. We have had
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such directives from the NSC 10/2 series on, and the Congress
has provided the funds for the purposes indicated. This posi-
tion is consistent with the opinion the Department of Justice
rendered for us while Nick Katzenbach was Attorney General in
connection with questions about the Bay of Pigs. The Presi-
dent can do what he determines has to be done in the national
interest, using such assets as are available.
6. In essence, the question is not a legal one. It is
the perpetual political power struggle between the executive
with its responsibility for the conduct of foreign affairs
and its authority over the armed forces and other executive
branch assets on the one hand, and the responsibility of the
Congress for the provision of funds and appropriate authori-
zations on the other. It is obviously futile to argue with
Senator Fulbright along these lines, as his quarrel is with
the Presidency, not with this Agency.
/s/
LAWRENCE R. HOUSTON
General Counsel
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FOOTNOTES TO APPENDIX D
1. Final Report of the Select Committee to Study
Governments Operations With Respect to Intelligence
Activities, United States Senate, 94th Cong., 2d
SessT Report No. 94-755, Government Printing
Office, 1976. (Hereinafter "Church Report")
Book IV, p. 68.
2. Church Report, Book I, pp. 147-48.
3. Church Report, Book I, pp. 35-38.
4. Macy, Christy and Kaplan, Susan, Documents: A
Shockin Collection of Memoranda, Letters, and
Telex from the Secret Files o the American
Intelligence Community, (New York: Penguin Books,
1980).
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APPENDIX E -- Illustrates that documents released under the
FOIA can reveal errors in official reports.
In many cases CIA documents released through the
Freedom of Information Act not only enrich or expand
government reports of improper CIA activities, but
flatly contradict them. The resources of government
committees are finite; their investigations have often
identified issues which could be examined in greater
detail by the public using the FOIA as an oversight tool.
One case in which the FOIA has fundamentally altered
public understanding of CIA activities is that of Project
RESISTANCE. RESISTANCE was a nation-wide study of U.S.
protest movements conducted between 1967-1973. (The FOIA
has been informative about many aspects of RESISTANCE, but
this appendix examines only the question of whether
RESISTANCE information was gathered from open sources or
through infiltration of political groups in the U.S.)
Project RESISTANCE was first disclosed in the final
reports of the Rockefeller Commission and the Church Committee.
The Rockefeller Commission found that information
collected for RESISTANCE was primarily based on open sources
such as newspapers and pamphlets and that the Project "used
no infiltrators, penetrators, or monitors." Occasionally
RESISTANCE received assistance from local police departments
or campus security forces. 1/
The Church Committee reiterated these conclusions, stating
that "the files indicate no use of infiltrations by CIA in
connection with this program. The overwhelming bulk of the
information continued to be press clippings passed on to
headquarters." 2/
But Project RESISTANCE files released under the FOIA
contain numerous reports from unilateral CIA informants who
infiltrated and monitored protest groups in Texas, Los Angeles,
Washington, D.C. and elsewhere. The use of informants was a
matter of policy and not a departure from policy, as indicated
by printed "Confidential Informant Information" forms attached
to informant reports.
(Examples of Project RESISTANCE informant report cover
sheets are attached.)
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CONFIDENTIAL INFORMANT IDENTIFICATION
SUBJECT: ? PROJECT RESISTANCE
CASE NO: 53 889 OFFICE: _
REPORT DATE: 28 March 1969 CATEGORY:
NAMES AND ADDRESSES, OR OTHER IDENTIFYING DATA,
OF TEMPORARY CONFIDENTIAL INFORMANTS:
UNDER NO CIRCUMSTANCES SHALL THE
IDENTITY OF CONFIDENTIAL INFORMANTS
BE REVEALED TO PERSONS OUTSIDE OF
OS WITHOUT THE APPROVAL OF DDS/lOS
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FILE NO. 533 989 DATE 27 January. 1968
Confidential Informant, R-1, provided
information concerning local Project Resistance
movements in the I!orth Central Texas area, indi-
cating that most of the activities concerning
the peace movement, including the activities
of the Dtudents for A :e: ocratic society and the
Dallas Committee or A i'eaceful 6olution To The
,,or In Viet I+am, have established a center at__
4515 Swiss Avenue in Dallas, which they call the
Peace House. He additionally advised that it
has become increasingly evident in recent weeks
that the'leaders of these groups are associating
with narcotics addicts and pushers in the Dallas
area and that the Dallas Police Department hope
to collect sufficient evidence to establish a
definite relationship between local pe~)ce move-
ment leaders and the narcotics trade and ulti-
mately discredit these loaders as the result of
publication of such information through a cooper-
ative effort with the local news media. R-1
additionally advised that a Black Power Conference
is scheduled for Dallas, to take place sometime
in the next two or three months. Additionally it
appears that there are some noteworthy activities
on the Bishop College campus and it appears the
Student Von-Violent Coordinating Committee might
be bocomin& more active in the Lallas area and the
"peaceniks are still holding their weekly vigils
in Dealy Flaaa. Tne January 17 to 31, 1068 edition
of Ile, tes To The Underground was obtained and
attached to the report.
.o+' 1125 ii,,. . i.. .,
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FOOTNOTES TO APPENDIX E
1. Report to the President P the Commsion on
CIA Activities Within the Unite Stites,
June 6, 1975 ("Rockefeller Report p. 155-56.
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Senator Birch Bayh, Chair
Senate Select Committee on Intelligence
Senator Edward Kennedy. Chair
Senate Judiciary Committee
Senator John Culver, Chair
Subcommittee on Administrative Practice
and Procedure
Senate Judiciary Committee
Representative Edward Boland, Chair
House Permanent Select Committee on Intelligence
Representative Jack Brooks, Chair
House Government Operations Committee
Representative Richardson Preyer, Chair
Subcommittee on Government Information
and Individual Rights
House Government Operations Committee
Dear Members of Congress:
We are writing to express our opposition to Section 421(d) of S 2284 'HR 6588, "The National Intelligence Act of
1980," which would substantially exempt the CIA from the Freedom of Information Act, and to Section 11 of S
2216/HR 6:11 6, "The Intelligence Reform Act of 1980," which would extend that exemption to all U.S. Intelligence
agencies.' These provisions represent a radical change in government policy and would severely limit the
disclosure of information to the public. They would damage serious historical and journalistic research and the
conduct of informed public debate.
Because of the major role the Central Intelligence Agency has played in this country's foreign relations wince
World War 11, its files are an invaluable resource for historians, political scientists and others. CIA documents
released under the FOIA have contributed to a substantial and growing body of historical and journalistic works.
The FOIA has also resulted in the public disclosure of.
^ CIA spying on the Reverend Martin Luther King, Jr.:
? CIA infiltration of lawful political groups in the United States;
? CIA secret behavior control and drug-testing programs;
^ CIA attempts to keep the Glomar Explorer incident out of the press; and
^ CIA failure to fully disclose information in response to authorized Congressional requests.
Indeed, the F'OIA provides an independent check on the CIA's activities. Under the proposed revision, that
important check would be eliminated.
The Freedom of Information Actin its present form provides ample protection fur information that is properly
classified or which reveals intelligence sources or methods. CIA officials admit that the Agency can protect
legitimate secrets under the Act. Testifying before the House Permanent Select Committee on Intelligence last
year, Deputy Director of the CIA Frank C. Carlucci said, "It is undeniable that under the current FOIA, national
security exemptions exist to protect our most vital information." Mr. Carlucci reiterated this position as recently
as February 20, 1980 in testimony before theSubcommittee on Government Information and Individual Rights of
the House Government Operations Committee.
Furthermore, John Blake. who as Deputy Director for Administration was responsible for the administration
of the FOIA at the Central Intelligence Agency, told the Senate Judiciary Committee in 1977 that, with respect to
the FOIA, "We have been able to make the necessary adjustments. I am pleased to report that, in fact. I think that
the Agency is better off for it."
Given the record of substantial public benefit from the use of the Act and the CIA's continued ability to protect
legitimate secrets, there is no justification for virtually exempting the CIA from the Freedom of Information Act.
Any concerns about the FOIA should be reviewed carefully through public hearings at which historians,
journalists and other users of the Act are given the opportunity to testify.
It is imperative that the Freedom of Information Art not he sacrificed as part of a hasty or ill-considered
reaction to current international tensions. We urge you to reject Section 241(d) of S 2284. HR 1)588, Section 3 of S
2216/HR 6:116, and any similar provision which would undercut the FOIA,
cc: All members of the Select Committee on Intelligence and the Committee on the Judiciary, U.S. Senate; All
members of the Permanent Select Committee on Intelligence and the Committee on Government Operations,
U.S. House of Representatives
attached: List of Books and Articles Based Wholly or in Part on Documents Released by the ('IA as a
Result of the Freedom of Information Art
'Please note that, while this letter addresses our cncerns about provisions sill rting the Fre a don a I In fnrnation Act, it is not
intended at imply support for any other provision of the proposed legislation.
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National Organizations
American Beptlst ChnreM?, URA
Omes ofGov.ro..entel Retail-.
Jane Toper, Director
Amercan lit lost Union
Raymond Nnthon, Ilicame
Washingtsn Ethical Action Offloe
Association Hm Astarkan PuMl.h.n
A d pe President
Association of Arab American University Graduates
Mujid S. K.sImi, President
Al Johneo. Mnnhw vl the Sued
Center for Constitutional Rights
Ruh,. Ikrhm, Chairprrnm. Hard of IRreotsn
Prank llrnk. RtnR Atlnmey
Center for National Sonority Studies
Moran It. I lalpevin. I IircNnr
Christian ('hurch 1111?elphm of Chrktk
Dep o,ent of l'Iwmh and onMly of the
S.
ISviebn of Homeland Mfninrk
Rolland C. Pi)e. K:rentive R erstxry
Church of the Rrnhran, wathinven office
"-aid P. (lank Uiraelm
Church ofOnlentnogy, National Commission
on Law Knfel essnnt and Nonnl.dwake
Kevin O'Ihmnell. All".. IScecbm
Cltl..tn Energy Project
Ken Ihmamg. Kcau Ikmmln. Jon Simpson.
Staff An-,bates
Clrgy and Isity Coneaen.d
Jahn Collias, Herb... Lull. C.Ignels
nn,m Area CAIA'
Z ("lid"'
Cenges.. each
Hownnl K o.... StolARarney
CwerIAetbn Information Bulletin
Ellen It.,. William Scheap. I.,mt. Wolf. l'-din-
Environmental Anion Ponod.tktn
( l..din (burin. [)unto,
Envleoententet Policy Cenlee
Holart Alvxrre
Federation of American Scientists
Eominkt Reeouees on Energy and Ecology
Ikmnn Wnmook, ('mrdinnne
Ereedoln of Inlematlon Clearinghouse
K.Iheri.. A. Meyer
Institution Educational Sorelee.,
Prism Law .Monjmr
Joseph Lykin.. Assistant IHmohu
I.a It.. U.M. Party
Fmnb Rhnffrr Carona, Wo.htngl,m Ambmuod,n
M.ryhnoll Pathees and Reotbero,
W..hln" Office on Junior and Peon.
Edward R. Killncken. IS-ter
Mennonite Central Committee, Pe.ee Section.
Washington OfRee
Uelwn Frnnr, Uirntor
National Alliance Against Racist end Political Rneesston
('hnrlene Mitchell, Kaecmive St tet.ey
National Association of Negro Redn... and Professbn.l
Wom ' ('lhs
1' onne Prio , l'ooniinxtnr, l:ovemmentol ARuim
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Non-Intervatlon In Chile
Bob Nigh. National l ,.dinar
Org.nk.tion (American 01.101...
Carl Unlen Prmidrnl. Profs..., of H 1.10..0.
Slonford UnivenitY
William Apple... William.. Prwiden4Hleel,
Po,fmo of Hi.lory. Oman Slate llnioeniOY
Hlch.rd Kirkendall, K.woliv. Steelery
Pelf? of Hi.tnry. University of Indi.n.
P.10.11.. Human Righa Campaign
Jim Zoghy, ('huirmon
The P- 0-i.,
Krwin K,,, il. Indior
P.blle ('illzen I.iligntlon O1up
Al.. H Moni.nn, Ilir.nur
Ilane B. Cohn, Staff AtIonley
Unitarian Universalist Association
Hah?rl %. Almon. Ihrn I"r. Wnnhinaum 11(6,0
Unitarian llnioeralhlt Senke l'ommitta,
National Morutorlum on Prison Construction
Mich,,ol Kroll. (',wnlinelnr
United (''hurch oft'llrim. Commission for
l,lsaDre
Meet.
Ivory Rnnd.Ili, ,,rd SpringI'mgmmo,NewY.,rk(IHi,v
tlniled ('hun?h of l'hri.L office for Church In Society
Rev. litter,' I.yno. I.?ginhaive(mnwl
(In11rd Methodist ('hunch; D panmenl of Law,
.goalies and Community Relations of the
Z M nard of ('hureh and Society
Nev..lohn 1'. Adams, Di-A",
Women's International L0gur for learc and Freedom
F:vehm Moan. I' Choir, Prngrnm,lnd A,00,,,
Local and Regional Organizations
Anti-Repr.lon Ramer,, Team.
Jnrknm. Mississippi
Km I.nwrenoo. Dirnnnr
Chicago Political Sunellann Litigation
and (du-ton Prohcl
Rio hnnl (!atmnn, l lire.(,,,
Cities., Commission on Police Repression,
In.. Angelo.
Linda Vulentinn, ,lelf('uhen
Committee to Relnvolve Ka-OA ,,den, Washington Chapter
Linda Purdue, Direcmr
D.C. Committee for the Hill of Right.
Ahr Ifloon, John Wilwm. l'o.Chuce
Fradoln of Infoneetan Center
(Inivenity of Miemuri School of Jnrnali.m
Colombia Mi.eoon
Paul Fi.hw. Diaclor
New Hampshire Research ProJeet
Kenn Hopkins
New York Sate New Uemoerotic Coalition
Helen Poan.ky. Chairwoman
Battle Coallton on Government Spying
Kalhlem Teylm, C,.,Ninetnr
South Jersey Coalition to Defend tit. Hill .(Rights
loll Poull. l',ordinoar
Southern Regional Council
Stn, S11ta. I llrrt10r
Tee.. ])..aerate
Rd l:,ythum, ('o('hair
RSlie ('un, l'nCh.i, end Ikmowelic Notional
Committeewomen
Washington Center for the Stody of Service.
Wohington. II.('.
ono. Gnldndn, Rmeorch Directw
Washington Peen ('.enter
Wnnhingln. 111'.
Manna ('m?r. /'nl lirerlw
Individuals
(lrooni0otinn, end other afflilll,,n1 listed for idenrifrntion W0Pmm nnly)
Kgbol Ahmed
Mellow,
nmannlionnl I nntitutr
Hobert ,Arlin(
Advi.ory No,ghlvoh,.,d ('nmmianioner
Wohingom. 1)1'
Hear. ('her[.-. V. Herg.trom
(0001,rr Di r, off- too llnvernmennrl Arfnin,
Lutheran l'onnriI in the I I.S. A.
Barton Bernstein
Aas,reiutr Pmkror..l' Hillar0
Sankad University
Norman Birnbaum
Amherst ('allege
Vlach no I'n,fi+wa
G,nrgr?b,wn Unwemlty I.nw t're4v
Molwrt Iarnnage
10,1,1 1
amttak h,r rnu,?y Haas,,
Perry Bullard
Stoto Krpr,? lolly
Ann Arh?r. Michigan
TIwnia ('lark
ian
Tam Il
Devine
Ann mlllinrlnr
1~nv vnmenl Arrnunlnhilily' I'n'jr,?r
Hlonrho' W laen ('oak
I'mfemnr of Hi,nrcy
.1,,h,lly 1'? Ihgr, l'ity Univcnily of N,?w \'-k
(mie dr Antonin
Film-lo,
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Thum.. 1. !moron
Unm Peofam or of law Erneritm
Yale Law Sehnol
Jar. Poems
Ra.e.tiv. Dir1.n
Coalition of A...Aan PaMir Rmploym
Role Puns
Profsr of Hhtery
CiatyyyUniwrdty of New York
Prd..n o of HYtory
Raise. Univmily
Haigh D. Gr.h.m
Proferor of History
Unlv.roity of Moayland
Robot GrlfSth
Pmf..... of Hiotory
Univmily of M..a.oha.w
Harlow Gorman
Prohmor of Hi.pny
City Univrr.ity of Nave York
Banl.y K.S.
Prata..or of H"oy
Princeton Unimarwity
Linda Harbor
Pmfooux of History
Univmily of lore.
Arthur Klnoy
Ptdnrw of law
RU..r. Univmily
Bova. K.kil.k
Chair, Iloportn.v of Hsory
Uivrr.ity of Ponnoylv.ni.
Walls Lock.
PM of Hionry
Cornell Univmily
B..f.d Iwvn.on
Pndm.or of I..
University ofT-..
Darts Randall loss
Prdow.r of Phila.ophy
Univmily of Whan.n, Milwnkr.
HIM. N.N. M.oa.
Co.ndl Mrmhn.l.Lo .
City Council of the Magnet of Columbia
Ede. M.C.111m
like, of United Nation' Affaint
Chard. Womn United
Correll Moody
Chair. U.p.nm.nt of Hi-`Y
Northern lifinw. University
Gory Gnnw.r
Alfad Univanity,
Vhinnd Prof rd Slow"
UnlwnMty of Pan ylv.nla
Otte A. P....
Profnoor of Hi.nry
Univmily of W..hoaton.
Vi.. Prmint far the Pmf.nbn
Amwicn HiNnk.l A..od.linn
Sidney Peek
Prof..... nfSodobay
Clark tnivmily
Sf.pho. Pd.
UniwdW of!..ari a.Ma,
Ibo.yd. Pdlnw
Foal AWn InMilaa. Cdamhh Univmily
D..M Plneh.r
Pro6ror of History
Uni erdty of Indiana.
Prmident
Saetety of Hiatori.ns of Amark.n Ford.n Rollie..
WIHto. Pr tan
Chub, IMourtrrrtnt of History
John Jay Collate, City Univmity of None York
Robin Road
But Coat New Hamphire Cl.m.h.ll All....
Iao P. Rlhvfa
A.wedaa Pmfnnr of Hlmmy
C,emp Woahin.ton Univmily
Rosrna Rire
Pmf... r of Hirary
Cdombio University.
Vim Preeidrnt for Rewrth
A-irwn Hi.rnriral A..ori.tinn
John Rnh.rd
Uhmoe Nation 1nat1Nle,
Adviurn Co n nitwe on Fredm of 1n1mndnn
fhganiyolion of American H..trrri.n.
N.alle Sehmltt
A.w -intr l'mhmor of Communintiooa end Theater
linivenity of Illinol., Chicr.o Circle
M.N. Srhn.pp.r
Puhio Affair. Pre..
Daniel Schorr
Syod.cnud Cdumni.I Radio and TV Co.n natal r
Noron Sherwin
Vuilin. Prof-r of Hirnry
Univmily of Pennsylvania
I-Oll -mot
Iireeun of Sy.ci.l Pmar.m.
Amerionn .lr+?i.h f'anmitt.r
Gddb Bnith
Chair, Ilyprrtmrnt of Ili.ary
Y.I. llnivrraity
Hatay Taylor
Direct,
Nuoleor Infmmatinn and it-,.-Service
Alban Theoh.rla
I e,vilo n of History
M.rgarttr llnivn.ity
Ken Tlloan
Attornry
Pool Vora
Pndr w. of Hi.tory
Mirhiaoa State University.
Pout Pn.idrnt
Sar. , of IIi.neinne of American Foreign Relation.
Urorda Wald
Profnw. of Ilkdaty. I?:meritu.
Ilarvnd L'niranitv
Willi.. Wnpl.ndar
1'-idea,
narrational A.wnrotion of Morhini.tr and Am.pore Workm
I1.0M Wir.
Author
lawrna Wittner
Aaaa -of Motor,
Stage Univmily of New York. Albany
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STUDIES
122 Maryland Avenue, N.E.
Washington, D.C. 20002
(202) 544-5350
MORTON H. HALPERIN
1756 Swann Street, N.W.
Washington, D.C.. 20009
(202) 265-1717
MONICA ANDRES
1869 Mintwood Place, N.W.
Washington, D.C. 20009
(202) 234-4014
STANSFIELD TURNER, Director
Central Intelligence Agency
Washington, D.C. 20505
COMPLAINT FOR INJUNCTIVE RELIEF
(FREEDOM OF INFORMATION)
JURISDICTION
1. This is an action under the Freedom of Information
Act, as amended, 5 U.S.C. 5552(a)(4)(B)(FOIA) and the
Administrative Procedure Act, 5 U.S.C. 5702 to enjoin de-
fendants from unreasonable delay and discriminatory treat-
ment in processing FOIA requests from plaintiffs, to require
defendants immediately to process plaintiffs' requests for
records, and to permit access to certain records in defend-
ants' possession.
2. This Court has jurisdiction over this action
pursuant to 5 U.S.C. S552(a)(4)(B), and 28 U.S.C. 51331.
PARTIES
3. Plaintiff Center for National Security Studies
("CNSS") is a project of the Fund for Peace and the American
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Civil Liberties Union Foundation. Among its activities,
CNSS makes extensive use of the FOIA to obtain government
documents concerning national security issues, including
issues relating to the CIA, and makes such documents avail-
able to scholars, journalists and other interested persons.
CNSS monitors, legislation and members of its staff are
frequently requested to testify before congressional com-
mittees concerning national security issues, including issues
relating to the CIA. Members of the CNSS staff publish a
monthly publication entitled "First Principals" and numerous
articles and books concerning national security using infor-
mation obtained from the government under the FOIA. In
addition, CNSS publishes abstracts of government documents
which have been released under the FOIA.
4. Plaintiff Mortin H. Halperin is the director of
CNSS. He has responsibility for all activities of CNSS,
including supervising staff members. Halperin needs access
to the material which is the subject of the FOIA requests at
issue in this complaint to prepare
speeches, testimony
before Congress and publication of books and articles on
matters affecting national security. Ia addition he seeks
access to this material to aid in teaching a graduate level
course at Columbia University concerning national security
matters.
5. Plaintiff Monica Andres is the librarian of CNSS.
She is responsible for making requests under FOIA, including
many requests which are the subject of this suit, main:
taining files of information released under FOIA and pro-
viding information and copies of documents to scholars,
journalists and others requesting information about the CIA
and national security. Plaintiff Andres also prepares
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abstracts of documents released under FOIA and writes
articles for "First Principals" based on information released
under FOIA.
6. Defendant Central intelligence Agency ("CIA") is
an agency of the United States and has possession of records
to which plaintifffs seek access.
7. Defendant Stansfield Turner is Director of the
COUNT I
8. By letter dated January 19, 1976, Morton H. Halperin
requested access under FOIA to all responses to the may 9,
1973 directive of the Director of Central Intelligence
asking that he be informed of any activities which might be
construed to be outside the legislative charter of the
agency.
9. By letter dated January 28, 1976, Gene F. Wilson,
the Information and Privacy Coordinator of defendant CIA,
acknowledged receipt of the request, denied the request for
the waiver of fees and noted delays that were being caused
by the large volume of requests.,
10. By letter dated February 17, 1976, Wilson informed
Halperin that the records he had requested were being with-
held under exemptions 1, 3 and 5 of FOIA.
11. By letter dated March 2, 1976, Halperin appealed
the denial.
12. By letter dated August 25, 1976, the Department of
the Treasury released one document, with certain names
deleted, which had been referred by the CIA to the Secret
Service for disposition.
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13. By letter dated December 8, 1976, the Department
of state released four documents referred to it as the
originating agency by the CIA as a result of Halperin's
appeal.
14. By letter dated May 23, 1977, defendant CIA re-
leased one document in its entirety and twenty (20) docu-
ments with partial deletions, primarily-of names, job titles
and identifying information based on exemptions 1, 3, 5, and
15. By letters dated June 6, 1977, defendant CIA
released two documents in their entirety, fourteen (14)
documents with partial deletions and withheld three (3)
documents in their entirety. The grounds upon which ma-
terial was withheld were exemptions 1, 3, 5 and 6.
16. Almost two years later, by letter dated April 23,
1979, defendant CIA released five (5) documents in their
entirety, seven (7) documents with partial deletions and
withheld one document in its entirety. The grounds for
withholding material were exemptions 1 and 3.
17. Over four years have passed since plaintiff
Halperin originally filed this request and, although addi-
tional documents subject to the request are acknowledged to
exist by defendant CIA, no further response to this request
has been received, in violation of subsection-(a)(6)(A) of'
FOIA.
COUNT II
18. By letter dated June 25, 1976, to defendant CIA,
Morton H. Halperin requested access under FORA to sixty (60)
documents identified in the Final Report of the Senate
Select Committee to Study Governmental Operations with
Respect to Intelligence Activities.
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19. In telephone conversations in October and December
1976 with persons at CIA, the staff of CNSS was informed
that periods of time varying from three weeks but not ex-
ceeding three months would be required to process the request.
20. By letter dated December 8, 1976, Halperin in-
formed Gene Wilson, Freedom of Information officer at
defendant CIA that he was treating as a denial the failure
to process the request within ten days as provided by sub-
section (a)(6)(A)(i) of the FOIA and was appealing the
denial pursuant to that subsection.
21. By letter dated December 16, 1976, Wilson informed
Halperin that arrangements would be made to consider his
appeal.
22. Defendant did not make any disposition of the
appeal within twenty (20) days as provided in subsection
(a)(6)(A)(ii) of FOIA and, over forty months later, no
disposition of this request has been made by defendant CIA.
COUNT III
23. By letter dated June 28, 1976, plaintiff Halperin
requested access under FOIA to all files in the possession
of defendant CIA relating to "Project 2" referenced in the
Final Report of the Senate Select Committee to Study
Governmental Operations with Respect to Intelligence Activities.
24. By letter dated July 7, 1976, defendant CIA
acknowledged receipt of this request.
25. By letter dated July 15, 1976, Halperin informed
defendant CIA that he was treating the failure to process
the request within the ten day limit under FOIA as a denial
and was appealing pursuant to subsection (a)(6). Halperin
noted his willingness to wait provided that a specific time
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table was set and that the CIA agreed that no documents
covered by the request would be destroyed prior to the
conclusion of any litigation arising out of the request.
26. By letter dated August 5, 1976, Wilson replied to
Halperin estimating a total of four months required to
process the appeal, giving assurance that the files would
not be destroyed, and noting that it was the CIA's policy to
process requests sequentially as a matter of fairness.
27. Over forty-five (45) months later, no disposition
of this request has been made by defendant CIA, in violation
of subsection (a)(6)(A)(ii) of FOIA.
COUNT IV
28. By letter dated September 20, 1976, plaintiff
requested access under FOIA to all memoranda in the pos-
session of defendant CIA analyzing the House Intelligence
Committee Report including memoranda sent to the House
Committee requesting changes or deletions and any assess-
ments of damage made after the report was published in the
Village Voice.
29. By letter dated October 5, 1976, Wilson acknowl-
edged receipt of the request and informed Halperin that the
heavy volume of FOIA requests had resulted in processing
backlogs, that he had a right to appeal if the request was
not processed within ten working days and that he would be
notified if processing and research fees exceeded $25.
30. By letter dated November 15, 1976, Halperin
elected to treat the failure to respond to the request
within ten working days provided by FOIA as a denial and
appealed.
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31. By letter dated November 18, 1976, Wilson acknowl-
edged receipt of the appeal.
32. Over forty-one (41) months later, no further
response has been received concerning this request, in
violation of subsection (a)(6)(A)(ii) of FOIA.
COUNT V
33. By letter dated January 11, 1978, plaintiff Andres
wrote on behalf of CNSS requesting access under FOIA to
defendant CIA's files on the assasination of Richard Welch.
34. By letter dated February 7, 1978, Wilson acknowl-
edged receipt of the request and informed Andres that pur-
suant to the request for waiver of fees, the CIA had agreed
to waive the first $200 of search fees. Wilson requested a
confirmation of the CNSS's willingness to pay for search
fees in excess of that amount and noted that no processing
would occur until such confirmation had been received.
35. By letter dated July 20, 1978, plaintiff Andres
indicated CNSS's willingness to pay at least $200 in search
fees and requested that she be informed of any fees in
excess of that amount.
36. By an undated letter from Charles Savige, de-
fendant CIA indicated that CNSS would be informed of any
fees in excess of $200, noted that there were processing
backlogs and that a right of appeal would exist if the
request were not processed within ten working days.
37. Over twenty-eight (28) months have passed since
this request was filed and no disposition has been made of
this request, in violation of subsection (a)(6)(A) of FOIA.
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COUNT VI
38. By letter dated may 3, 1978, plaintiff Andres
requested access on behalf of CNSS to all correspondence
between any university and defendant CIA concerning
guidelines governing relations between the university and
defendant CIA.
39. By letter dated May 17, 1978, Wilson acknowledged
receipt of the request, denied the request for waiver of
fees on the grounds that the amount of material that would
be released to the public would be insufficient to warrant
such a waiver of fees and indicated that the CIA would not
process the request until it had received a "firm commitment
to pay the resultant processing fees."
40. By letter dated October 27, 1978, plaintiff Andres
indicated CNSS's willingness to pay up to $50 in search fees
and requested notification if fees would exceed that amount.
41. By letter dated November 7, 1978, Savige for
George W. Owens acknowledged the October 27th letter and
indicated the inability of the CIA to process the request
within ten working days due to the heavy backlog.
42. Over eighteen months later, no further response
has been received concerning this request, in violation of
subsection (a)(6)(A) of FOIA.
COUNT VII
43. By letter dated August 11, 1978, plaintiff Andres
requested access to the file containing the overall intelli-
gence activity budget for fiscal year 1979.
44. By letter-dated September 7, 1978, Savige for
George Owens, Information and Privacy Coordinator of de-
fendant CIA, denied access to this material under Exemptions
1 and 3 of FOIA.
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45. By letter dated September 15, 1978, plaintiff
Andres appealed the denial.
46. By letter dated September 20, 1978, Savige ac-
knowledged receipt of the appeal.
47. Over nineteen months later, no further corre-
spondence has been received concerning this request, in
violation of subsection (a)(6)(A) of FOIA.
COUNT VIII
48. By letter dated October 11, 1978, plaintiff
Andres requested access on behalf of CNSS to all documents
pertaining to a June 14, 1978 meeting between CIA officials
and university presidents.
49. By letter dated October 24, 1978, defendant CIA
declined to waive search fees and indicated that no further
processing of the request could take place until a firm
commitment to pay such fees had been obtained.
50. By letter dated October 26, 1978, plaintiff
Andres indicated CNSS's willingness to pay costs up to $100
and requested notification if search fees exceeded that
amount.
51. By letter dated November 1, 1978, defendant CIA
indicated that it would take between six and nine months to
complete processing of the request and informed CNSS of its
right to appeal in view of the fact that the CIA was unable
to complete the processing of the request within the ten
days provided under FOIA.
52. Over nineteen months later no further reply has
been received concerning this request, in violation of sub-
section (a) (6) (A) of FOIA.
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COUNT IX
53. By letter dated October 20, 1978, plaintiff Andres
requested on behalf of CNSS access to all records pertaining
to CIA involvement in the 1953 coup d'etat in Iran which led
to the overthrow of Mohammed Mossadegh.
54. By letter dated May 22, 1979, defendant CIA ac-
knowledged CIA participation in the overthrow of Mossadegh,
admitted that it had made no search for records covered by
the request but stated that any records which might exist
would be exempt from disclosure under Exemptions 1 and 3 of
FOIA.
55. By letter dated May 1, 1980, plaintiff Andres
appealed this denial.
56. Defendant CIA's failure, for over eighteen months,
to conduct a search for records covered by the request and
to review them to determine whether they are exempt violates
subsections (a)(6)(A) and the segregability provision of
POIA.
COUNT X
57. By letter dated November 8, 1978, plaintiff Andres
requested access on behalf of CNSS to ten case files sub-
mitted by the CIA to the Senate Select Committee on Intelligence,
Subcommittee on Secrecy and Disclosure in connection with
that Subcommittee's investigation of national security
secrets and the administration of justice.
58. By letter dated December 12, 1978, defendant
responded to this request and two others filed on November 8
indicating that it would cost approximately $300 to process
the requests, requesting a $150 deposit prior to beginning
processing and denying a request for a fee waiver.
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59. By letter dated March 29, 1979, plaintiff Andres
indicated that the records requested were specifically
identified and asked that the CIA reexamine the request and
the amount of time and effort required to process it. The
letter indicated that the original estimate far exceeded the
reasonable standard charges for document search and dupli-
cation, as provided for under FOIA. It further noted that
the FOIA conference report had stated "fees should not be
used for the purpose of discouraging requests for informa-
tion or as obstacles to disclosure of requested information."
60. By letter dated March 4, 1980, defendant CIA
denied the request on the grounds the records requested were
exempt in their entirety under Exemption 3 of FOIA.
61. By letter dated March 17, 1980, plaintiff Andres
appealed the denial noting that it was likely that segre-
gable portions of the ten case files were not exempt and
were required to be produced under FOIA.
62. By letter dated March 24, 1980, defendant CIA
acknowledged the appeal and noted that the backlog of
appeals would result in processing delays.
63. The failure of defendant CIA to release nonexempt
portions of the requested files within the time limits set
forth in FOIA violates subsection (a)(6)(A) and the segrega-
bility provision of FOIA.
COUNT XI
64. By letter dated November 21, 1978, plaintiff
Andres requested access on behalf of CNSS to "any submis-
sions made to the eight Congressional committees. . .
relating to the Agency's attempts to influence the outcome
or in any way manipulate the French elections in the last
five years."
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65. By letter dated December 18, 1978, defendant
denied this request. The CIA indicated that it had not
conducted any search for such records and could neither
confirm nor deny their existence, but that if such records
existed they would be classified and exempt from production
under exemption.1 of FOIA and further would relate to infor-
mation pertaining to intelligence sources and methods which
the Director of Central Intelligence has the responsibility
to protect from unauthorized disclosure in accordance with
S 102(d)(3) of the National Security Act of 1947 and S 6 of
the Central Intelligence Agency Act of 1949, making them
exempt pursuant to exemption 3 of FOIA.
66. By letter dated December 28, 1978, plaintiff
Andres appealed.
67. By letter dated January 9, 1979, defendant ac-
knowledged receipt of the appeal.
68. Over sixteen (16) months later, no further re-
sponse has been received concerning this request, in viola-
tion of subsection (a)(6)(A)(ii) of FOIA.
COUNT XII
69. By letter dated July 30, 1979, plaintiff Andres
requested access to any photographs of the United States
obtained by the National Reconnaissance Office or any other
agency or component of the Defense Department of the CIA
through any method of overhead reconnaissance, including
satellite surveillance, during the years 1966, 1968, 1969,
1978 and 1979, including any analyses of such photographs.
70. Over nine months (9) have elapsed and no response
has been received concerning this request, in violation of
subsection (a)(6)(A) of FOIA.
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COUNT XIII
71. The allegations in paragraphs 1-70 of the Complaint
are repeated and incorporated herein by reference.
72. Defendant CIA, by the acts and practices described
above, has failed to meet its obligation to process requests
within the time limits set forth in subsection (a)(6) of
FOIA. Defendant CIA has failed to exercise due diligence in
processing the FOIA requests which are the subject of this
Complaint and no exceptional circumstances exist which
justify the delays.
COUNT XIV
73. The allegations of paragraphs 1-72 of the Complaint
are realleged and incorporated herein by reference.
74. The failure of defendant CIA to comply with the
processing deadlines of FOIA has had the purpose, among
others, of delaying the processing of requests in the hopes
that favorable legislation would be enacted which would
exempt all,CIA.records from disclosure.
75. This failure to process and release non-exempt
records has injured plaintiffs and impeded their efforts to
collect and analyze information about the national security,
to make such information available to the public and other-
wise to use such information in their daily activities.
76. Defendant CIA's conduct violates FOIA and the
Administrative Procedure Act.
COUNT XV
77. The allegations in paragraphs 1-76 of the Complaint
are repeated and incorporated herein by reference.
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78. Defendant CIA has established policies and proce-
dures with respect to processing FOIA requests, including a
policy of processing requests on a sequential basis as they
are received.
79. Because plaintiffs frequently use FOIA to gain
access to records concerning the vital public interest in
national security and because plaintiffs often use the
information obtained under FOIA to criticize the CIA and to
engage in debate before Congress and other public forums
over the appropriate measures to protect national security,
defendant CIA has departed from the policy of sequential
processing and other policies and procedures with respect to
FOIA requests received from plaintiffs. It has delayed or
taken no action on many of plaintiffs'_requests while pro-
cessing subsequent requests from other persons.
80. This conduct discriminates against plaintiffs in
violation of FOIA and the Administrative Procedure Act.
81. The work of plaintiffs in engaging in public
debate and in informing the public about issues affecting
the national security has been frustrated by this unlawful
and discriminatory conduct of defendant CIA.
WHEREFORE, plaintiffs pray that the Court (1) order
defendants to complete processing of all aforementioned
requests within one month; (2) enjoin defendants from dis-
criminatorily processing any further requests from plain-
tiffs; (3) establish procedures to accomplish processing of
FOIA requests in a reasonable period of time; (4) order
defendants to permit access to the requested records;
(5) take such action as the Court deems appropriate under
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155
ion (a)(4)(F) of FOIA; (6) order expeditious pro-
_..3s in this action as provided in 5 U.S.C. 552(a)(4)(D);
Dated: Washington, D.C.
May 15, 1980
grant such other and further
just and proper.
gRAEME W. BUSH
taelin & Drysdale-
1101 Seventeenth Street, N.W.
Washington, D.C. 20036
(202) 862-5000
Mark H. Lynch
Susan W. Shaffer
American Civil Liberties
Union Foundation
122 Maryland Avenue, N.E.
Washington, D.C. 20002
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Mr. PREYES. Let me ask either of you a few questions as to whether
there is any sort of ground for reconciliation here. When the Govern-
ment is defending an FOIA case in court it has to prepare detailed
indexes of materials that are withheld and the reasons for withhold-
ing them. The CIA complains that this is a great litigative and admin-
istrative burden.
Are there any ways to cut back either on the indexing requirement
or on the extent of the affidavits that the Government must file in these
lawsuits that would not damage your interests in lawsuits and that you
would consider?
Mr. LYNCH. Quantitatively I think there is a great deal that could
be done to reduce what I recognize to be sometimes an unreasonable
burden, not only on the CIA but on other agencies as well, in the prepa-
ration of what are called Vaughn v. Rosen affidavits.
We are exploring in a couple of cases the possibility of random
sampling in cases where there are a lot of documents and the Vaughn
index may be very long indeed. We are exploring the possibility of
random samplng of some of the documents and having a relatively
detailed justification provided for why those documents that are the
subject of the random sample must be withheld. The judge could then
make a decision based on the random sample.
If he decides that ar,.duments are unwarranted then his decision
would apply to the other documents. To insure that the judge's decision
was followed it might be necessary to have a post hoc audit of another
set of random samples.
We do recognize the lack of utility in preparing Vaughn v.
Rosen affidavits that could go on for hundreds and hundreds of pages
that do not say anything very specific.
I think, with respect to the detail that the courts have demanded-
and this goes to the qualitative nature of the Vaughn v. Ror n
affidavits-particularly the U.S. Court of Appeals for the District of
Columbia circuit, in a case called Ran v. Turner which is the lead-
ing case on Vaughn v. Rosen as it applies to the CIA-that case is at
587 Fed. 2d .1187. I think that detailed a demand is not unjustified
and if the courts are going to perform de novo review they need that
detail.
I would agree that it is not necessary to have quite the quantity that
is required in some cases,
Mr. PREYER. While that does not address the CIA argument about
misperception, I gather what you are saying is that something can be
done by way of reducing the litigative and administrative burden on
that score.
Mr. LYxcx. Yes. That is right, Mr. Chairman. On the perception
problem, I think there are also some grounds for reconciliation.
I realize I was quite harsh in my criticism of H.R. 7056, but H.R.
7055 does not merit such harsh criticism at all. I think that bill is per-
haps redundant because I have not been convinced that this perception
problem is real.
Assuming that it is, if you had an exemption as contemplated by
H.R. 7055 that lays out in the law that information provided under
an express promise of confidentiality from either a secret intelligence
source or from a foreign intelligence service is going to be kept, I
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would not have any great objection to that. I think that kind of infor-
mation is clearly exempt under exemption (1) and under exemption
(3) in 50 U.S.C. 403(d) (3), but if they would like to have it in black
and white so that they can go to their foreign liason agencies and
sources and say, "Here we have an exemption that will protect the
information you provide under an express request for confidentiality,"
it will be protected.
However, it would be reviewed if necessary by a judge. That is nec-
essary. If they get the total exemption that they want with no threat
of judicial review we are going to find, first, 5-page documents, then
25-page documents, then 500-page documents which are going to be
withheld in their entirety because there is one source sensitive sentence
buried in the middle. You need that threat of review to make sure that
that withholding by contamination is not put into effect.
Mr. PREYER. Let me ask Mr. Halperin this. All properly classified
material is exempt from disclosure under the Freedom of Information
Act. Can you speculate as to why the President did not broaden the
recently revised Executive order on classification to include categories
of information that the CIA is now asking Congress to protect?
Mr. HALPERIN. You are asking me to speculate, Mr. Chairmany about
the process of decisionmaking within the executive branch.
I think part of it is that simply a different group of people were
responsible for drafting the Executive order than are responsible for
developing the CIA amendments.
As I understand it, the CIA did not press for those changes in the
Executive order. I think it may be because they recognized that they
would not get them.
I think it is also because they want to get themselves out of the pro-
cedural requirements of the Executive order. For example, the new
Executive order has what we call the balancing test in it which says
that information can only be withheld if the public value of it does not
outweigh the possible iniury to national security if it is released.
Insofar as the CIA relies on the first exemption, they have to engage
in that balancing. They have been resisting that bitterly and they have
just been ordered by the District Court of the District of Columbia, by
Judge Sirica, to engage in that balancing which is required by the
Executive order.
I think they would prefer to rely on a statute that they can draft
and which they can make sure does not have, from their point of view,
any loopholes.
I think one has to say that if the President's judgment is reflected in
that Executive order as to what information needs to be kept secret in
the interest of national defense and foreign relations and what pro-
cedures ought to be followed, the Agency should be required to live
with that and Congress should not be asked to give them a lower
standard than the President gave them in the Executive order.
Mr. PREYER. Thank you. Let me give someone else a chance here.
Mr. Drinan ? -
Mr. DRINAN. Thank you, Mr. Chairman.
I want to commend .the witnesses on their statement. I was particu-
larly impressed, Mr. Halperin, by the last paragraph on page 1;
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namely, that even if the CIA got everything that they wanted to with
regard to the FOIA their problem would still exist.
I would assume that they could tell foreign intelligence offices and
foreign sources of information that everything that they receive from
those sources would be classified. They would have that power I would
assume.
[General response of "Yes."]
Mr. DRINAN. Why do they not do that and say that it is classified
forever and cannot be declassified?
Mr. HALPERIN. It is because under the Freedom of Information Act
a judge does conduct a de novo review of classified documents and
could, in theory, reach the judgment that it was not properly classified
and order it released.
I think that it is extraordinarily implausible that any Federal dis-
trict court judge would order release of information received from a
confidential or secret intelligence source whose life could be put in
jeopardy if information were released. That has never happened. I
cannot imagine it happening.
I thinkagi the CIA could say, with absolute confidence, "We are con-
fident that we have ample authority under the Freedom of Information
Act to decline to release this information and we will not release it."
Mr. DRINAN. They perceive this to be a problem and rightly or
wrongly, they have the idea that these foreign agents are not speaking
to them. They say that they cannot prove it because you cannot prove a
negative. However, these people are just not giving the information.
Is there any way besides amending the FOIA by which the law can
reach the problem that the CIA feels it has ?
Mr. HALPERIN. I do not think that there is any way to reach that
problem. First of all, our position is that these protests about the
Freedom of Information Act have not arisen spontaneously from these
foreign information sources but that there have been some previous
discussions.
I think the problem, in large part, stems from our political system.
If I were a foreign source thinking about working for the CIA I would
be much more disturbed about reading in the newspaper that Iranian
nationals helped the U.S. Government rent a warehouse which was to
be used in the aborted attempt to rescue the hostages and that Ameri-
can CIA agents or intelligence officers went in disguised as European
businessmen and worked with local Iranians to set up arrangements
to rent the trucks, and so on.
If I were an Iranian who cooperated with that I would feel very
nervous because those stories were in the newspaper, not because
there was a Freedom of Information Act.
If I were a national of another country thinking about cooperating
with the CIA or some other U.S. intelligence service I think I would
be much more affected by that, by the fact that the CIA left behind a
record of every Vietnamese who cooperated with them to be captured
by the North Vietnamese, by the fact that the Kurds were encouraged
to revolt and then were left to be killed than I would be by the theo-
retical possibility that some judge someday may order something be
released under the Freedom of Information Act.
Mr. DRINAN. I assume that the CIA is preparing legislation to take
care of all of those things too. They want to correct those.
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Mr. HALixRIN. $ut they have to be prepared to indict high White
House officials if they want to correct that problem. I do not know
that they have legislation
Mr. DRINAN. Coming back to my original question, is there any way
to meet them halfway 4 They feel very sincere about this and very
strongly. They have the White House semipursuaded at least.
Mr. HALrxiux. I think, as Mr. Lynch has suggested, that the amend-
ment that the chairman and the subcommittee has put in meets the
problem insofar as it is a legitimate problem. The problem is if the
CIA announces it as not effective or not acceptable, then since it is a
perception problem it does not meet it.
We have always felt that the only way to deal with the problem is
to persuade the CIA that they are not going to get what they want,
that they therefore ought to be willing to work with the committees
to develop something which will not vitiate the act but will give them
something to deal with their perception problem.
I think, as soon as they realize that they are not going to get what
they want, it would be possible very quickly to agree to something
along the lines of the amendment that has been put forward by
Mr. LYNCH. Mr. Drinan?
Mr. DRINAN. Yes.
Mr. LYNCH. I just want to point out too that it is worth underlining
the rather wishy-washy nature of the CIA's contentions in this matter.
They originally took the position that they had to have a total file
exemption in order to take care of the perception problem. They
could not sell that to the Justice Department, so they backed off from
that.
Now they are saying their perception problem can be solved if the
possibility of judicial review is removed. If they are unsuccessful
there, I think they may fall back to the position of saying that the
perception problem will be solved with H.R. 7055.
They have wishy-washed back and forth here quite a bit as to what
the necessary cure for this purported perception problem is.
Mr. DRINAN. I have one last question, Mr. Chairman.
The seventh exemption of the FOIA is that the CIA can withhold
all information received from a confidential source. Why is that not
adequate? I suppose that is ultimately reviewable, but if they say
that something is from a confidential source or a foreign agent, it
seems to me almost inconceivable that any Federal judge would assert
the power, if he has the power, to say that they have to disclose it.
Mr. LYNCH. I am sympathetic to the CIA with respect to why they
cannot use the seventh exemption because that is all predicated on law
enforcement information.
Mr. DRINAN. They cannot use it at all I
Mr. LYNCH. They cannot use the seventh exemption, except perhaps
in very very limited circumstances perhaps related to the Foreign
Intelligence Surveillance Act. Since that exemption is limited to law
enforcement information the majority of the Agency's files cannot fall
within it.
They tried that early on
Mr. HALPRRIN. They have a catch-22 there, namely, that it only
relates to lawful national security investigations. The District of Co-
lumbia Court of Appeals has said that they do not have a right to
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t60
engage in ' lawful criminal investigations. Therefore, they ? caxniot -.use
it because if they claim that it is then unlawful they cannot use it.
Mr. DRiNAN. I see. I thank both of you very much. You have been
very helpful.
I yield back the balance of my time.
Mr. PREYER. Thank you. Mr. Erlenborn?
Mr. ERLENBORN. I have no questions, Mr. Chairman.
Mr. PREYER. Thank you. Mr. Butler?
Mr. BUTLER. Thank you, Mr. Chairman.
I hate to keep beating a dead horse here, but I think the basic prob-
lem is : Is there a perception problem or is there not ? We have a group
that says "Yes" and we have a group that says "No."
My questions are : How do you resolve this? How do we really make
a determination as to this problem and how bad it may be ? How do
we make a scientific determination as to whether or not there is a
perception problem? Have you thoughts on that?
Mr. HALPERIN. I think one thing we can do is to look at, as we have
tried to do there, and which we tried to do more in the longer report
which is attached to our statement, all of the different ways that infor-
mation can be made public over the objection of the CIA agent who is
talking to this potential source.
CIA says the problem is that you go into a room with a potential
source of assistance and that person or that agency says, "Can you
assure me that the fact that I have given you information and my
identity will never be made public ?" The CIA says that it has to be
able to give that assurance in order to pursuade the person to work
for them.
I think what one could do is to ask the question : What are all the
different ways that this other person would be aware of that would
prevent the CIA person from giving an absolute assurance? If you
run down that list : unauthorized disclosure by various people within
the Government, spies who actually give the information away-we
have unfortunately had a few of those recently-court orders in civil
actions wherein people's constitutional rights have been violated, re-
quests for documents by individuals for their own files which the CIA
is not purporting to change.
If you run down all of those possibilities, on the list would be FOIA
requests of the kind that are covered under this amendment, but so
would 22 other things. Then if you looked at the newspapers and see
what kind of information has gotten into the headlines and the news
in a way that would raise questions in the minds of notential agents
as to whether or not CIA can keep their secrets, or if you looked at,
say, the New York Times index or some other source of news infor-
mation, you would find that the sources of the information that have
been made'public and that would potentially scare off foreign agents
are not disclosures under the Freedom of Information Act, because
there have been none. No court has ordered any sentence released that
has been made public.
You would find all of these other things-that there were spies who
were selling various secret CIA manuals to the Russians. that there
were leaks from high White House sources and other people about co-
operation by people with the CIA. If you ran down the list, I think,
the conclusion that you would have to come to is that there is a per-
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c9tion problem. The Ct.A: dies have a credibility problem when: it
tries to assure people that their identities will Bever be' made public,
but that that credibility problem comes from 15 or 20 different sources.
The FOIA is a very small part of that. Then I' think you have to
balance the degree to which you would help solve the problem by mak-
ing this amendment to the Freedom of Xnformation Act against the
importance to public debate in the United States of the existing
amendments. I think if you did all of that you would say that you
should not change the act.
Mr. BUTLER. I am not a bit surprised at your conclusion. Neverthe-
less, it is basically a subjective determination of the source and we are
at his mercy.
Not only do we have Mr. Carlucci, we have others. The gentleman
from North Carolina and I were at a briefing with the same people
representing the United States in one of the foreign capitals. They
volunteered this information. The perception problem is very real in
their efforts to cultivate intelligence sources.
I think that is pretty good evidence that it exists. I just do not
believe that running down a laundry list of possible sources,of their
misperception, if that is what it is, is going to be very comforting.
That is the problem I have.
I appreciate the work you have done and you certainly gave a much
more perceptive analysis of the act itself, but I am at a loss as to how
I can really go behind a simple statement of people in the field that
there is a perception problem. I do not feel qualified and I do not think
you have given me much encouragement' to believe that these people
do not believe it.
Mr. HALPERIN. Let me take just one more second, if I may, to re-
spond to that. I am not saying that the Freedom of Information Act
is not part of the perception or misperception problem, but the CIA
agrees and Mr. Carlucci has testified that all of these other things are
part of the perception problem as well. Some of those are not mis-
perceptions. They are real perceptions.
It is true that White House sources said things about the Iranian
operation. It is true that-
Mr. BUTLER. Well, you realize that there are those that are taking
steps to do something about that.
Mr. HALPERIN. I think something should be done about that. That is
a problem we can do something about. It is not a misperception prob-
lem. It is a correct perception problem.
I think those are the problems we ought to work on.
I would ask you to look at this proposed administration amendment,
on page 2 of H.R. 7056. Just ask yourself this. If you were a Polish
colonel
Mr. BUTLER. Do not identify the country. [Laughter.]
Mr. HALPERIN. All right. 1 you were a person working for the CIA
in a country where that might get you killed if it were found out, you
were worried about the Freedom of Information Act, and your control
agent came rushing in and said, "Don't worry about it any more. Con-
gress has just passed this."
Look at what this says. It has all sorts of references to judicial re-
view. "This certification may not apply to information responsive to
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requests by United States citizens. * * *" It is limited and hedged in
a variety of ways.
I find it impossible to believe that handing this convoluted, compli-
cated piece of paper to somebody or summarizing it for them, and then
saying, "The problem has gone away," will really have any effect on
them.
If you compare that to H.R. 7055, it says very simply : Exempt from
the Freedom of Information Act is information "obtained, under an
express promise of confidentiality, by the Central Intelligence Agency
either (A) from a secret intelligence source, or (B) from a foreign
intelligence service."
My guess would be that if you handed this one sentence to them and
said, "Congress has just passed this," and it is clear that this informa-
tion is exempt from disclosure under the Freedom of Information Act,
insofar as you can effect people's perceptions you do it much more
credibly by passing something like this than you do by passing this
long, convoluted document which, I would submit, is drafted not by
people who are worried about the perception problem in the field but
who are litigators in the CIA who are looking for regulations of value
to them in court litigation.
This was not drafted by somebody who has to deal with an agent in
the field and pursuade him that the information will be kept secret.
It was drafted by people who litigate. They put in sentences that are
useful to them in their litigation. I would submit it would have no
impact on anybody's perception problem at all.
Mr. BuTLm. If we added to H.R. 7055 the sentence from H.R. 7056
dealing with conclusiveness and absence of judicial review, you would
not be happy with that, I .Judge.
Mr. HALPERIN. We would be very unhappy with it.
Mr. BUTLER. That is really what is critical.
Turning that around, you are so overwhelmed by the language in
H.R. 7056 that even if we took that language of H.R. 7056 you would
not be happy with that.
Mr. HALPERIN. I would say that if you took out the "in each such
instance" sentence, the difference between the two would be very small.
Mr. BUTLER. It would be measured more in number of words than
in the thrust.
Mr. HAiPERIN. The impact, yes. I think the impact, except for that
one sentence, of those two amendments is pretty much the same. H.R.
7056 relates also to the design function and deployment of scientific
and technical systems. I must say that I have great difficulty under-
standing how that relates to the perception problem.
As far as I know. no American tactical system has ever refused to
cooperate with the CIA because of the fear that its identity would be
disclosed. I just do not understand at all what the case is for adding
that to the amendment at all. It is certainly not part of the perception
problem.
Mr. BuTLER. Would information concerning the design, et cetera, as
set forth in H.R. 70.6. be impliedly included in H.R. 70551
Mr. HALPERIN. I think it is already included in 50 U.S.C. 403(d) (3).
Intelligence sources and methods are exempt from disclosure under the
act. So that-
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Mr. BUTLER. We are not caught on paragraph number (7) or the law
enforcement problem with that one.
Mr. HALPERIN. No. It is a (b) (3) exemption under the separate
statute for protecting sources and methods.
We do not object to it because we do think it is identical with what
they already have.
Mr. BUTLER. You mean, it is redundant.
Mr. HALPERIN. If they want it again, it just clutters up the bill, but
it does not change anything.
Mr. BUTLER. I think maybe the CIA is dedicated to the proposition
that you do not use one sentence when three would do the 'ob.
Mr. LYNCH. I was going to say that, aside from the judicial review
problem, which is enormous, the principle difference between H.R. 7055
and H.R. 7056 is that the person who drafted H.R. 7055 is adhering to
the current movement for clear legal writing and the person who wrote
H.R. 7056 has not been caught up In that yet.
H.R. 7055 is a succinct and direct statement of what someone else
took several lines to write.
Mr. BUTLER. It suffers from candor, but that is all right. I appreciate
that insight.
Thank you, Mr. Chairman. I yield back.
Mr. PREYER. Thank you.
Along the lines of Mr. Drinan's question of whether there is any
way to bring these two differing views together, would you object to a
limitation on the court's ability to review decisions to withhold names
of informants? That was excluded.
Mr. LYNCH. Just the name or the cryptonym ? I would not have any
trouble with that at all.
Mr. PRETER. Is there any other sort of limitation of judicial review
of Agency decisions on whether to declassify intelligence information
that you would find acceptable? For example, would you object to a
special court's reviewing such decisions ?
Mr. HALPERIN. Yes. I think we think this should be left as it is now
in the regular judicial system. There is no reason and no basis for
putting this in any special court.
There is no record and, indeed, no allegation of 'mishandling of this
information by the courts. A number of district court judges have
engaged in in camera review and we think that process should continue.
Mr. PREYER. Are there any further questions of the witnesses?
Mr. DRINAN. Yes. Has this proposal come up; namely, that all
information received by the CIA from foreign intelligence sources
should be- treated as law enforcement information and that it would
have an absolute immunity just as the informants of the FBI cannot
be disclosed ?
Mr. HALPERIN. No.
Mr. LYNCH. That is one drafting alternative that I know people in
this area have thought of. I am not sure why it has not been pursued.
Mr. DRINAN. How would you people react to that?
Mr. HALPERIN. I think there is a much cleaner and more desirable
way of handling this; namely, under the Executive order. The Execu-
tive order, on classification, says that any information obtained in
confidence from a foreign government is presumed to be classified
confidential, so that
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164
Mr. DRINAN. However, that is still subject to judicial review.
Mr. HALPERIN. The only thing that is subject to judicial review is
whether the information has been obtained in confidence from a for-
eign government. The court can inquire into that and must satisfy
itself that the information is in fact obtained in confidence from a
foreign government. As I read the Executive order and the cases, the
court could not make its own independent judgment that the informa-
tion obtained in confidence from a foreign government could be released
without injury to the national defense.
Mr. DRINAN. Would the CIA be satisfied with that ?
Mr. HALPERIN. I think what the CIA is satisfied with, as Mr. Lynch
has suggested, are changes based on what they think they can get. I
think if this committee makes it clear that H.R. 7056 is not going to be
reported out or anything like it that they might well be willing to
sit down.
As I said, I think one could draft relatively quickly something
which would give them something to use to deal with their perception
problem without changing the guts of judicial review.
Mr. DRINAN. I thank you once again. I yield back the balance of
my time. Thank you, Mr. Chairman.
Mr. PREYER. Thank you. We appreciate very much your being here
today, Mr. Halperin and Mr. Lynch. Thank you for your valuable
assistance on this roblem..
Mr. HALPERIN. Thank you, Mr. Chairman.
Mr. BUTLER. Mr. Chairman, have we had-when Mr. Carlucci was
here, he did not have this legislation before him. Is that correct?
Mr. PREYER. That is correct.
Mr. BUTLER. Have we had a comment from the CIA on these bills?
Mr. PREYER. I do not believe that we have, but we do plan to hear
from them.
Mr. BUTLER. In another hearing?
Mr. PREYER. Yes.
Mr. BUTLER. All right. Thank you.
Mr. PREYER. We also have statements for the record from Lawrence
Wittner, who is associate professor of history at the State University
of New York at Albany; and Stephen E. Pelz, associate professor of
history at the University of Massachusetts, concerning their views on
the Freedom of Information Act in their work. If there is no objec-
tion, I would like to introduce those statements into the record at this
point.
[The material follows:]
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/~tri ~s~im~ar~oa e~~/iCadda~u6ttZ`d~
vws~extG oioos
DEPARTMENT OF HISTORY
HERTER HALL
Hon. Richardson Preyer
2344 Rayburn House Office Building
Washington, DC 20515
I am writing to protest the Senate bill (the shortened
Huddleston amendments to existing law reported in the
New York Times of this date) which would exempt the CIA
from the operationpf the FOIA and by implicationvthe declassi-
fication executive order.
My own work on post World War II diplomatic history, and
that of numerous other historians and political scientists,
depends on the continued operation of the act and the order.
Scholars must be able to reconstruct the President's view
of the world, if they are to understand and evaluate his actions,
and they cannot do so if intelligence reports remain secret.
I have used to EO to secure CIA reports on the Korean war era
which were not printed in the relevant Foreign Relations of
the U.S. volumes.
Exemption would allow the CIA to maintain the secrecy of
operations which aye a critical part of the record of our
foreign policy -- the installation of the Shah, the coups
against Diem and Minh, and the OPlan 34A raids on North Vietnam,
etc.
Does not Congress need histories by independent researchers
to help it decide which kinds of intelligence operations
are effective and which are not? Certainly we do not want
the CIA to be the sole author of its own history. I strongly
urge the House to maintain FOIA intact.
Stephen E. Pelz
Associate Professor
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Con.gressman.sichardson `rreyer
Chairman
House Subcommittee on Government Information
and Individual sights
3-349C Rayburn Building
Washington, D.C. 20515
Thank you for inviting me to testify on legislative
proposals to exempt the Central Intelligence Agency from the
provisions of the Freedom of Information Act.
I an an American historian, specializing in the recent
foreign policy of the United States. Since 1967, I have taught
courses,on the history of American foreign policy at Vassar
College, Columbia University, Tapanese universities (under the
Fulbright-Hays Educational Exchange Program), and at the State
University of New York at Albany, where I am currently employed
as Associate Professor of History. I am the author of 4 books,
17 articles, and dozens of reviews, most of them dealing with
questions of recent American diplomacy. In addition, I am the
former president and a member of the executive council of the
Conference on Feace sesea.rch in History -- a professional
organization, concerned with the resolution of international
conflict, composed of several hundred scholars.
In my capacity as an historian, I have had frequent
occasion to utilize copies of documents obtained from the CIA
under the provisions of the Freedom of Information Act. Some of
these items, released at the request of scholars and now housed
at the National Archives, are CIA studies of past American foreign
policy problems and ventures. Other documents I have drawn upon
originated with agencies other than the CIA (e.g. the Department
of State and the Office of Strategic Services), but were
declassified and released for general scholarly use only after
scholarly requests elicited CIA authorization. I obtained
additional research materials by filing Freedom of Information
Act requests directly with the CIA. It is my understandingthat
none of these documents would have been made accessible to-
scholars if the latter had lacked recourse to the Freedom of
Information Act.
Such materials are of considerable value to scholars, for
they enable them to better understand the workings of American
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foreign policy, to analyze U.S. motives in dealing with foreign
powers, to evaluate the perceptions of the intelligence
community, and to assess the practices of foreign organizations
and governments. CIA materials, of course, constitute only part
of the overall picture. Nevertheless, they are an important
part. Without them, the historian makes all too many guesses
and, thereby, may badly inform other scholars, policymakers, and
the public. For this reason, those concerned with the advancement
of knowledge have welcomed the Freedom of Information Act and the
opportunity it provides to enhance our understanding of world
affairs.
Let me give you an illustration, drawn from my own work.
For the last five years, I have been working on a book, just
completed, analyzing American policy toward Greece during the
1940s. Although a detailed, scholarly study, it will also be of
some interest to a. broad audience, for it deals with issues of
considerable moment (e.g. the Truman Doctrine and American policy
in the Near and Middle East). In this book, one key question with
which I have been grappling is the apparent change in American
policy from World War II (when it allegedly favored Greece's
leftist resistance movement) to the postwar era (when its hard-line
approach toward Communist-led forces culminated in the Truman
Doctrine). Purportedly, the Office of Strategic Services, which
worked most closely with the resistance forces, was quite sympa-
thetic to them. But through a Freedom of Information Act request
to the CIA, I obtained files which indicated that the OSS
leadership in Washington opposed closer ties with the resistance
forces. This fact, coupled with material of a similar nature
regarding State Department and White House attitudes, led me to a
new appraisal of Washington's wartime dealings with the Greek
Left. My findings were published in "American Policy Toward Greece
During World War II," Diplomatic History, III (Spring 1979), an
article which drew praise and considerable comment from scholars.
They will also provide an important part of the first chapter of
my forthcoming book, The Americans in Greece. 1943-1949 (Columbia
University Press).
From my standpoint -- and that of many other scholars as well
-- the major drawback of the Freedom of Information Act, as
applied to the CIA, is not its strength but its weakness.
Currently, the CIA. limits severely the material it releases,
citing a variety of national security considerations in justifica-
tion. Although scholars may avail themselves of an appeal
procedure, it does not appear to be very effective. For example,
on October 20, 1977, I filed a Freedom of Information Act request
with the National Archives for release of a 1946 State Department
document that was germane to my work on American policy toward
Greece. Although the State Department authorized declassifica-
tion, the CIA did not. On August 10, 1978, I formally appealed
the CIA position. Much correspondence and numerous telephone calls
have ensued, but the CIA. has yet to act upon this appeal. Such
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delay, when added to the exemptions already granted the CIA,
indicates that, even without new restrictions on research, the
balance is already weighted heavily against free enquiry.
Given the obvious value of research in CIA.-originated and
CIA-linked documents to a better understanding of American foreign
policy, and given the CIA's current ability to avoid disclosure of
materials it considers security-sensitive, there seems no good
purpose served by exempting the CIA from the provisions of the
Freedom of Information Act. This represents my own conclusion, as
well as that of numerous scholars. My own organization, the
Conference on Peace lesearch in History, took up this question at
a meeting of its executive council on April 26, 1980. At that
time, the council voted unanimously to oppose restrictions on the
Freedom of Information Act and instructed me to bring this action
to your attention.
The state of international affairs is dangerous, indeed, but
it is made no safer by establishing new obstacles to scholarly
and public understanding of world events. I trust that Congress
will give serious consideration to this fact, particularly when
enacting guidelines for an agency that is supposed to foster
"intelligence."
Thank you again for giving me the opportunity to present
testimony on this important issue.
Sincerely,
Lawrence S. Wittner
Associate Professor of History
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Mr. Pxan. Next I would like to call on Mr. Lloyd Gardner of
Rutgers University and Mr. Athan Theoharis of Marquette University
to tell us how historians feel that the Freedom of Information Act has
affected their work and whether the law should be changed.
It is a pleasure to have you gentlemen with us today. Your state-
ments will be made part of the record and you may proceed as you see
fit. You may summarize your statement.
I recognize Mr. Gardner first.
STATEMENT OF LLOYD C. GARDNER, PROFESSOR, DEPARTMENT OF
HISTORY, RUTGERS UNIVERSITY, ON BEHALF OF THE ORGANI-
ZATION OF AMERICAN HISTORIANS
Mr. GARDNER. Mr. Chairman, thank you very much.
Before I read the statement I have prepared-I apologize for the
scratchings and changes on it. I was obligated to prepare much of it
last night. Before I read it, I would like to comment briefly on this
intriguing discussion about perceptions of sources that you went
through just a few minutes ago.
I was at Princeton in the last week and the Daily Princetonian, the
student newspaper, has been running a series of articles based on in-
formation from informants to the CIA known as the Princeton Group.
The source of information was the Allen Dulles papers at Princeton
University.
The point is simply that, as Mr. Halperin was saying, when you have
a political system which is open in most respects, the ability to keep
secret informants, even from diligent college seniors who are writing
honors papers based on the Allen Dulles papers, is almost impossible.
It is almost impossible to protect that kind of source, unless you want
to change the political `system which would be very difficult.
I am a professor of history at Rutgers University in New Brunswick,
N.J. I have been involved in questions relating to public access to
Government documents for some time.
A decade ago, in the midst of the controversy over publication of
the Pentagon Papers, I delivered the major address at a National
Archives conference on declassification policies and procedures, a por-
tion of which was then published on the op-ed page of the New York
Times. For 3 years, from 1976 to 1979, I was a designated representa-
tive of the American Historical Association on the advisory committee
for the Historical Office of the Department of State.
The last year of that term I served as chairman, responsible for
writing its annual report. The principal tasks of the committee in-
cluded not only recommendations in regard to the documentary series,
foreign relations, but to the entire area of Government declassifica-
tion policies.
I appear today on behalf of the Organization of American His-
torians, for whom I am authorized to speak regarding proposed
changes pertaining to the Freedom of Information Act and about evi-
dence of changing attitudes toward declassification generally.
The passage of the Freedom of Information Act reconfirmed a cen-
tral tenet of constitutional democracy-the public's need and right to
have access to information on which Government decisions affecting
individual citizens and national policy are based.
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The historian in such a society has a special obligation to use that
information to establish an accurate record, not simply to fulfill pri-
vate responsibilities, but indeed to satisfy the demands of national
interest and national security, terms often misapplied and misused by
overzealous advocates of secrecy.
Legislation introduced in recent weeks in both Houses of Congress
designed to limit the application of FOIA in various ways is a disturb-
ing reminder that not everyone understands fully the purpose of that
act or is not convinced it works in the national interest. This is a
curious development because the exemptions desired for the Central
Intelligence Agency will not really help it to prevent the publication
of memoirs by former employees.
However that may be, another principal reason for asking for ex-
emption from FOIA concerns so-called foreign-originated, or nongov-
ernment, material in CIA files. The argument is made that informants
and intelligence agencies of other nations will not trust the United
States with their secrets out of fear that the information will soon
enter the public realm.
There are several answers to this objection, First, no responsible his-
torian I know would assume that documents being used in current
negotiations should be made available until a proper interval. That
this is true is easily demonstrated for, as Mr. Halperin stated, "not one
sentence has been released to the public under a court order in circum-
stances where the CIA has argued that release would injure the
national security."
We may well disagree among ourselves about what constitutes a
proper interval. Indeed, it is for that reason that the most recent
Presidential Executive order reserves certain categories of documents
from automatic declassification. The FOIA serves an important pur-
pose in this regard by adding another check or balance to a system still
heavily weighted in favor of such restrictions.
The second answer to the objection put by the CIA in requesting
exemption from releasing documents originated from sources outside
the Government is that it is not a loophole hindering the Agency's
effectiveness but a noose that would eventually strangle FOIA. When
FOIA first went into operation I pointed out at the National Archives
conference that it contained a catch-22 in that a researcher had to
know that a document existed before it could be requested. I tested
that provision by requesting cable traffic between Washington and
Seoul, Korea in the first week of the Korean war.
The request was denied as too broad. Others had similar experiences
and changes were made in the administration of the law to insure that
this catch-22 did not prevent the original purpose of FOIA from being
achieved.
If this exemption is granted, as it is now stated in H.R. 7056, his-
torians and other researchers will be worse off than in the days of
catch-22-far worse off for who can say where the limits of such an
exemption lie ?
The final answer is that if the CIA is granted this privilege, how
can it be denied to other agencies? Will the National Security Council,
the Defense Department, or the Department of State be willing to take
second place in a race to close files and thus subvert Congress intention
in passing FOIA ? It is not likely.
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Indeed, one of my major concerns today is with the disturbing evi-
dence that the CIA's proposed exemption reflects a general change in
attitude toward declassification.
In recent weeks many of my colleagues and I have been informed
that the notion that foreign originated information should not be de-
classified on schedule has been so expanded as to include even conver-
sations with foreign ambassadors.
Volumes in the foreign relations series already compiled, some even
in galleys, have been recalled to expunge up to 15 to 20 percent of the
documentary material. Thus is this series, the best of its kind in the
world, about to be denigrated and brought down to a level just above
that of the famous White House papers issued by the Government
years ago to justify whatever it was they wanted to justify.
This will be a tragedy if it is allowed to go unchallenged. I am
familiar also with other reports from colleagues that the process of
declassification of documents at the Presidential libraries has slowed,
in some cases almost to a dead standstill.
What an irony it is that this administration, which began with a
pledge to open Government, has thus slipped into what might be called
charitably passive resistance to declassification.
It is an interesting time we live in in the sense of the ancient Chinese
curse, but the post-Vietnam backlash against declassification and
against FOIA can only remind the historian of days when kings
banished prophets who displeased them and sent messengers bearing
bad news to oblivion. Surely, we are not prepared to go that route.
Thank you.
Mr. PREYER. Thank you.
Mr. Theoharis?
STATEMENT OF ATHAN THEOHARIS, PROFESSOR, DEPARTMENT OF
HISTORY, MARQUETTE UNIVERSITY
Mr. THEOHARIS. I have already submitted a prepared statement to
the subcommittee. Let me say at the outset that, because of the haste
involved in the drafting of that statement so that it might reach the
subcommittee before these hearings, I have certain additions to make
to the statement.
I will briefly summarize the statement but will also make additions
which will not be in the prepared statement before you.
My name is Athan Theoharis. I am a professor of American history
at Marquette University, specializing in Federal surveillance policy
during the cold war years. I thank the subcommittee for inviting my
testimony on H.R. 7055 and H.R. 7056, to amend the Freedom of
Information Act of 1966, as amended.
Insights I have gained from my research experience as an historian
of Federal surveillance policy, which have included the use of the
FOIA to obtain FBI files, and formerly as a consultant to the Senate
Select Committee on Intelligence Activities, or the so-called Church
committee, might prove profitable to the subcommittee and its staff
during deliberations on these important legislative measures.
At the outset let me state that I am unconvinced by the claims of
harm to the national security advanced by CIA, AT, and Carter
administration officials to justify the proposed amendments to the
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FOIA-ranging from the virtually total exemption proposed by Sen-
ator Moynihan in S. 2216, the more limited exemptions of S. 2284, and
now the even more limited amendments of H.R. 7056. To date no
legitimate national secrets have been compromised because of the
FOIA.
This is not surprising since the act does contain specific sections
permitting the intelligence agencies to exempt from disclosure legiti-
mate national secrets, including information identified as having been
received from foreign intelligence services or from identified private
citizens and more generally the agencies' sources and methods.
From the point of view of historians whose research in the recent
past has been totally frustrated by often capricious national security
claims, the FOIA, as amended in 1974, for the first time provided
the means to challenge unjustifiable national security claims in a more
impartial forum. After 1974 the intelligence agencies could no longer
claim national security to exempt from disclosure documents which
would disclose their illegal, embarrassing, and political activities.
These claims would thereafter be subject to external scrutiny through
the courts.
H.R. 7056 proposes to gut this needed safeguard. In welcome con-
trast, H.R. 7055 does not. For this reason alone, if any legislation is to
be enacted for the ostensible purpose of resolving what CIA officials
maintain is a "perception" problem of foreign intelligence services
who distrust the FOIA, I could support enactment of H.R. 7055.
My objection to measures represented as intended merely to safe-
guard legitimate national secrets and permits the efficient functioning
of the intelligence agencies stems from a concern over the impact of
the proposed exemptive legislation on scholarly research and, concom-
itantly, on our political system of checks and balances. There is, I think,
a distinct correlation between H.R. 7056's recommendation to amend
the FOIA to permit the CIA and FBI Directors to certify categories
of files as exempt frm the FOIA's disclosure provisions and another
similarly represented change proffered by the FBI in 5.1612 and H.R.
5030 which would authorize the FBI to "destroy records compiled in
connection with an investigation * * * or deposit them in the National
Archives for historic preservation * * *."
S. 1612 and H.R. 5030 contain another section which would exempt
FBI procedures from the FOIA's mandatory search and disclosure
requirements. This is not as innocent an exemption as it appears. The
FBI's "Do Not File" procedure for "clearly illegal" break-ins, June
mail procedure for "sources illegal in nature," administrative pages
procedure for "facts and information which are considered of a nature
not expedient to disseminate or would cause embarrassment to the
Bureau if distributed," and administrative purposes procedure to
safeguard politically sensitive information, for example, would be
exempted under this section.
Both H.R. 7056 and S. 1612, and H.R. 5030. accord exclusive and
unreviewable authority to FBI and CIA officials to determine which
records are to become publicly available, including for historical
research. Given the past history of the intelligence agencies, I question
whether granting this unreviewable. exemption is sound policy.
In my testimony today I shall not discuss the record destruction
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section of S. 1612 and H.R. 5030. This legislation Js not presently
before this subcommittee, although if enacted _it will significantly
affect future use of the FOIA.
I enclose with this statement a Xerox copy of corrected galley
proofs of my forthcoming article in the Judges' Journal, to be pub-
lished later this month in the spring, 198% issue. In this article I detail
my objection to the proposed unreviewable destruction authorization.
I shall confine my remarks today to H.R. 7056's proposal to exempt
s ecified CIA and FBI documents from disclosure under the FOIA.
These exemptions involve :
(a) intelligence obtained from a person, entity or organization other than a
person employed by the United States government; (b) information which identi-
fies or tends to identify a source or potential source of information or assistance
to an intelligence agency.
Since H.R. 7056 denies the right of judicial review, it is important
to understand the criteria which FBI and CIA officials might employ
to effect these exemptions, for the nature of this unreviewable certi-
fication claim can seriously affect the quality of future scholarly
research.
A's a historian, 'I submit that one way to anticipate the criteria and
the resultant impact is to review the past practices of the intelligence
agencies as these involve their relationship with "a person not em-
ployed by the United States Government" or "a source or potential
source of information or assistance to an intelligence agency.
From FBI and CIA files released under the FOIA and from the
published reports and hearings of congressional committees, notably
the Senate Select Committee on Intelligence Activities and this sub-
committee, we now have a limited understanding of how in the recent
past the FBI and CIA defined the (a) and (b) exemptions.
For example, to disguise the fact that information had been illegally
obtained-whether through break-ins, wiretaps, or mail intercepts-
FBI officials directed FBI agents to prepare letterhead memorandums,
or so-called LHM's, and report that the information had been obtained
from a reliable andhighly confidential source" or from an "informant."
Alternatively, FBI Director Hoover ordered other FBI officials to re-
sort to blind memos, identifying neither the sender nor the recipient,
either when reporting information obtained from bugs or when dis-
cussing microphone surveillance policy. These memorandums were
then filed in FBI Director Hoover's carefully controlled official and
confidential file.
Blind memos were also used to furnish information to counsel of
the House Committee on Un-American Activities during the 1960's.
FBI officials were specifically directed to employ "terminology * * *
such that the memorandum cannot be identified as a Bureau
document."
An FBI report of 1949 on the National Lawyers Guild, for example,
is reprinted verbatim or closely paraphrased in a report on the wild
released in 1950 by the House Committee on Un-American Activities.
Moreover, in 1969 FBI Assistant Director William Sullivan sent re-
ports from Paris, France, to FBI officials in Washington under a "Do
Not File" procedure based in part on a bug installed by a French police
agency in the hotel room of syndicated columnist Joseph Kraft.
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In addition, we have recently learned that beginning at least in
February 1946 FBI officials initiated an educational program to in-
fluence "public opinion" by releasing "educational material" through
"available channels." The channels included cooperative Congressmen,
notably but not exclusively Joseph McCarthy, Karl Mundt, Richard
Nixon, and Howard Smith; congressional committees, notably the
House Committee on Un-American Activities and the Senate Internal
Security Subcommittee; and reporters-notably but not exclusively
the Chicago Tribune's Washington bureau chief, Walter Trohan ; the
New York Herald-Tribune's Washington bureau chief, Don White-
head; UPI Washington bureau chief, Lyle Wilson; syndicated Hearst
columnists George Skolsky, Westbrook Pegler, and Fulton Lewis, Jr.;
U.S. News & World Report editor David Lawrence; New York
World Telegram reporter Frederick Woltman; Hearst reporter Jim
Bishop; and radio commentators Walter Winchell, Drew Pearson, and
Paul Harvey.
From FBI files I have received'under the FOIA I have learned that
the FBI broke into the offices of the American Youth Congress in 1942
to photocopy the correspondence between Mrs. Eleanor Roosevelt and
officials of the Congress. These documents were filed in the unserialized
official and confidential file maintained in the office of former FBI
Assistant Director Louis Nichols.
It might be of interest to this subcommittee, given its 1975 investi-
gation of FBI recordkeeping, that this Nichols file contained a list of
"Do Not File" documents recording FBI contacts with Members of
Congress and the media.
The CIA, by contrast, subsidized the National Student Association,
the research of favored academics, and commercial publishers-includ-
ing ownership of the Forum World Features. In addition, CIA offi-
cials apparently cooperated with Miami News reporter Hal Hendrix
and Copley reporter Charles Keely while, in February 1966, CIA Di-
rector John McCone sought to convince the New York Times to kill
a series of articles on the CIA and later that year Deputy CIA Director
Richard Helms convinced the New York Times not to permit book
publication of the series since, to quote from Harrison Salisbury's
"Without Fear and Favor" :
Newspaper publication had been bad enough ; if the series appeared in book
form it would be much worse ; there would be a permanent, easily accessible
record.
Under H.R. 7056 the CIA and FBI Directors would have exclusive
authority to certify documents pertaining to these illegal or political
activities as exempt from disclosure and these rulings could not be
appealed. At least, under H.R. 7055. and the FOTA at present, attempts
to exempt such documents from disclosure could be challenged in the
courts and be rebuffed since such documents do not meet the criteria
of legitimate national secrets.
Given our recently acquired, though undeniably limited, knowledge
of the past practices of the FBI and the CIA, I question whether it is
sound policy to grant this discretionary exemption authority. Because
of the important policy roles of the FBI and*the CIA as well as their
abuses of power and political activities, we cannot hope to understand
the recent past unless we have the opportunity to research FBI and
CIA documents.
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A case can be made that the available records distort the past, lead-
ing us to emphasize Senator Joseph McCarthy's and not the FBI's role
in the creation of a McCarthyite politics or the role of the Departments
of Defense and State and not the CIA in the formulation and execu-
tion of U.S. foreign policy.
Indeed, the conventional wisdom among historians until quite re-
cently was that the CIA's resort to covert operations began during the
Eisenhower years with the overthrow of the Mossadegh government
in 1953. We now know that CIA covert operations began in 1947 under
NSC directive 4A and were refined further in 1948 under NSC direc-
tive 10/2 and that in 1949 a special branch was created within the
CIA to at least consider assassinations and kidnapings.
These, clearly, are not minor developments and should command
the research interests of historians of American foreign relations. To
historians of the decisionmaking and of the Office of the President, the
evolution of the CIA's operational role from intelligence coordination
to intelligence collection to covert operations is equally of great
import.
Knowledge of the policy role, scope of investigative activities and
techniques, and political activism of the FBI and CIA would not
merely be of interest to academics and antiquarians. Indeed, such
knowledge of the historic role of the intelligence agencies, based on
research into primary sources, can be of considerable value to the Con-
gress at a time when legislative charters are being formulated and in
the future when the effects of such charter legislation will be evaluated.
As important, such published research can also provide indirect
assistance to the oversight mission of the House and Senate Intelli-
gence Committees.
If H.R. 7056 appears limited and benign on its face, its enactment
could have a devastating impact on historical research. Ironically, at
a time when research involving the historical role of the FBI and the
CIA can only now be initiated, to a great extent because of the FOIA,
H.R. 7056 would in effect partially restore the pre-1974 access restric-
tions. For, until the enactment of the 1974 amendments to the FOIA
all FBI and CIA documents had been classified and were not accessi-
ble for scholarly research.
These classification restrictions were so capricious that even FBI
documents pertaining to the Bureau's surveillance role during the
World War I period and August 1923 investigation of the fraudulent
Zinoviev instructions were closed. In addition, during the early 1960's,
FBI officials successfully pressured the National Archives to withdraw
from Department of Justice and American Protective League files all
documents and copies of documents pertaining to FBI investigations
of the World War I period.
To date historians might not have extensively used the FOIA to
obtain FBI and CIA files. This limited use was a necessary byproduct
of the absolute classification of all FBI and CIA files.
Only recently have historians learned about some of the activities
which I referred to in my statement. This recent knowledge has de-
rived from renorts and hearings of congressional committees. I would
anticinate that, based upon our use of the FOIA, we will be able to
identify additional documents and programs that might very well
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highlight the incompleteness of the first-rate congressional investiga-
tions of 1975 and 1976.
I thank the subcommittee for inviting my testimony but also for its
decision to hold public hearings on these important legislative
measures.
Mr. PREYER. Thank you very much.
Without objection, the material you supplied with your statement
will be included in the hearing record at this point.
[The material follows:]
Squirelled amidst the obviously more important provisions of the Federal
Bureau of Investigation Charter Act of 1979 (S. 1612) , is an apparently in-
nocuous provision outlining procedures for the "destruction of [FBI] infor-
mation." This section stipulates : "The FBI shall destroy records compiled in
connection with an investigation conducted pursuant to section 533 [of the pro-
posed charter legislation] or deposit them in the Archives of the United States
for historic preservation pursuant to section 2103 of title 44, United States Code,
ten years after the termination of the investigation if there is no prosecution
or ten years after termination of prosecution unless...."' (Emphasis added)
On its face, this would seem to authorize FBI officials to destroy unneeded
information contained in the Bureau's voluminous files. However, the actual
effect of this proposd section would be to repeal the mandatory record reten-
tion and external review requirements of the Fedorgl Records Act of 1950.'
Reaffirming the earlier Records Disposal Act of 1943,` the 1950 Act mandated
the creation and preservation of "records containing adequate and proper docu-
mentation of the organization, functioning, decisions, procedures and essential
transactions of the [federal] agency and to furnish the information necessary
to protect the legal and financial rights of the government and of persons directly
affected by the agency's activities."
To insure compliance with thes legislative provisions, the Code of Federal
Regulations' directs federal agencies to maintain complete records "to the ex-
tent required (1) to facilitate informal action by the incumbents and their suc-
cessors in office; (2) to make possible a proper scrutiny by the Congress, other
duly authorized agencies of the Government, and other persons properly and
directly concerned of the manner in which public business has been discharged ;
and (3) to protect the financial, legal, and other rights of the Government and
of persons affected by the Government's actions." Among the regulations detailed
to preserve complete records were that agency heads cooperate with the General
Services Administrator (GSA)-in reality, the National Archives subdivision-
to develop records management techniques that would preserve a permanent and
complete historic record, establish safeguards against destruction or loss of docu-
ments, notify the GSA of any unlawful removal of records, and initiate action
to recover unlawfully removed records.'
In effect, the proposed changes under section 553c of S. 1612 would immunize
the FBI from the external review requirements of the Federal Records Act of
1950 and from the attendant provisions of the Code of Federal Regulations. If
S. 1612 is enacted, the FBI would no longer have to secure external National
Archives approval to destroy documents. FBI officials alone would determine
which FBI documents (1) were of historic value, or (2) would facilitate future
congressional oversight, or (3) would "protect the financial, legal, and other
rights" of citizens who might be affected by FBI actions.
Should the FBI be accorded this discretionary authority? Why, moreover.
have FBI officials sought to exempt the FBI from the external review require-
ments of the Federal Records Act of 1950?
1 Drafted by FBI officials and introduced on July 31, 1979, by Senator Edward M. Ken-
nedy on behalf of the Carter administration.
Id., p 27, lines 5-22.
Id. -22.
44 U.S.C. 3301 et seq.
'
' 41 C.F.R. 101-11.1 et seq.
"The relevant sections from the Act and the Code are nuoted and discussed in "Final
Renort of the National Study Commission on Records and Documents of Federal Officials"
(Washington : U.B. Government Printing Office, 1977), pp. 17, 81-84.
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At the outset, it should be noted that the FBI had not always complied with the
Federal Records Act's records retention requirements. As early as 1940, FBI
officials devised separate filing procedures to permit the destruction of FBI docu-
ments recording "sensitive," "clearly illegal," and "potentially embarrassing"
FBI activities. (These procedures have since been refined and extended.) Such
documents were not to be serialized, hence, because no retrievable record would
have been created of their existence, they could besafely destroyed. In addition,
documents created under these procedures were to be filed separately from the
FBI's central files and were to bear the notation either "Do Not File" or "This
Memorandum is for Administrative Purposes-To be Destroyed after Action is
Taken and Not Sent to Files.""
Despite these safeguards, the FBI did not destroy all such politically sensitive
documents. Thus, some "Do Not File" break-in documents recently were discov-
ered in the personal safes of the New York and the Chicago special agents in
charge (SACS). Other FBI documents involving Alger Hiss and the National
Lawyers Guild, originally created under the "Administrative Purposes" proce-
dure, were later transferred $ at the direction of FBI officials either to the central
files or to other retrievable files. Because they were retained, these documents
were vulnerable during the 1970's to demands for the production of all relevant
FBI documents whether under specific court-ordered discovery motions or Free-
dom of Information Act suits .9 The public release of these records, in combina-
tion with still other sensitive FBI files, was deeply embarrassing to the FBI,
highlighting as they did the FBI officials' past abuses of power and conscious
political activism.
When either transferring or preserving sensitive "Do Not File" documents,
FBI officials had confidently assumed that FBI files would always remain sac-
rosanct. Until the 1970s, in fact, all FBI files were classified, including dated files
such as those recording the FBI's surveillance role during World War I and
the FBI's August 1923 investigation of the fraudulent Zinoviev Instructions.
During the 1960s, moreover, FBI Director J. Edgar Hoover succeeded in having
withdrawn and classified for the purpose of national security those copies of
FBI documents contained in the Department of Justice's World War I files
already deposited in the National Archives.10 FBI officials had not anticipated
that Congress might enact legislation, the amended Freedom of Information Act 11
that permitted public access to FBI fies.
This unanticipated problem bedeviled FBI officials during the 1970s. To con-
tain historians and interested researchers from being able to gain access to the
FBI's extraordinarily detailed but politically explosive files, FBI officials sought
to purge the Bureau's files. Thus, in May 1975, FBI officials submitted a plan to
the National Archives for the destruction of "Closed [field office] files of the
Federal Bureau of Investigation containing investigative reports, inter- and intra-
office communications, related evidence . . . collected or received during the
7I have discussed these separate filing and record destruction procedures in Researching
FBI Files: Unanticipated Problems, in Athan Theoharis (ed.). BEYOND U.S. v. ALGER Hiss:
THE FBI. CONGRESS, AND THE COLD WAR (Forthcoming 1980). See also my earlier writings
on this issue : Bureaucrats Above the Law: Double-Entry Intelligence Files, THE NATION
(October 22, 1977). pp. 898-396; SPYING ON AMERICANS: POLITICAL SURVEILLANCE FROM
HOOVER TO THE HUSTON PLAN (Philadelphia: Temple University Press, 1978), pp. 32,19,
43-44, 48, 94, 102, 105-107, 112, 114-116 121-122, 125, 132, 156 185, 191-194, 269 n.
20, 275 n. 81, 278 n. 66, 281 n. 1; and The Problem of Purging FBI Files, USA TODAY (No-
vem' er 1978), pp. 48-50.
0 The particular documents involving Alger Hiss were created in 1946 and were then filed
I. FBI Associate Director Clyde Tolson's "personal files" but were transferred in 1949 to
b'BI DireeLor Hoover s "Official and Confidential" files ; those Involving the National
Lawyers Guild were created in 1l'49 but were transferred in 1958 to the FBI s central files.
a NELSON BLACHSTOCH. C)OINpTELPRO : THE FBI-ss SECRET WAR ON POLITICAL FREEDOM :
signed (blind] !Memo, Not Bfor Fileg~anuary 10 1966, FBI Chicago Feb eloffice flies, Chicago
Committee to Defend the Bill of Rights. Memos, Hoover to Tolson, Tamm, Ladd, and Clegg
March 19, 1946, and Hoover to Tolson, Tamm and Ladd March 20 and 21, 1948, all FBI
62-116606-1 ' Undated routing slip, Hoover to Tolson, Lady d, and Nichols, FBI 1478; Memo,
Ladd to FBI Director, December 10, 1948, FBI 1478; Memo. Ladd to FBI Director, Decem-
ber 13, 1948 FBI 1478' Undated routing slip, Hoover to Tolson Ladd, and Nichols, FBI Ladh
FBI Di FBI birrecthorlDecember 28 1948 FBI 1733; all in FBI Files, AlgerlHiss, Memo, Nicho e to
Tolson, June 28, 1949, FBI 1669, FBI Files, National Lawyers Build.
10 JOAN JENSEN, T E PRICE OF VIGILANCE (Chica o: Rand McNally, 1968), p. 814;
MELVYN DUBOFSKY, WE SHALL BE ALL (Chicago : Quadrangle, 1969), p. 589; SANFORD
UNGAR, FBI (Boston : Atlantic Monthly/Little Brown, 1976) pp. 873-875, 383-886; and
P. BLACKSTONE, AGENTS OF DECEIT (Chicago, Quadrangle, 1666), pp. 96-97.
115 U.S.C. 552.
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course of public business in accordance with the FBI investigative mandaw."
Arguing that the FBI's headquarters files essentially duplicated "in whole, sub-
stance, or summarization" all "substantive" information in the field office files,
on March 26, 1976, FBI officials obtained formal authorization from the Na-
tional Archives to destroy field office files.11
Because the National Archives had not independently reviewed FBI field office
files, and thereby could not independently ascertain that under this plan impor-
tant policy documents would not be destroyed, critics of this authorization were
able to temporarily delay its implementation. FBI field office files involving the
Alger Hiss and Julius and Ethel Rosenberg investigations, released prior to the
implementation of this proposed record destruction p:an, confirmed that the
FBI's headquarters files did not duplicate field office files. In addition, FBI offi-
cials in 1975 had advised the Senate Select Committee on Intelligence Activities
that break-in documents could not be produced because all such documents had
been destroyed under the "Do Not File" procedure, but break-in documents were
discovered in 1976 and 1979 in field office files.
To further conceal its involvement in illegal investigative activities,. the FBI
devised other reporting procedures including the use of Letterhead Memoran-
dums (LHMs) and the "June" notation. LHMs were to be used whenever agents
conveyed information to FBI headquarters which had been illegally obtained
(through break-ins or illegal wiretaps, for example). Under this reporting pro-
cedure, the source of the information was to be camouflaged as having been ob-
tained through "informants" and was to be obtained through "informants" and
was to be reported in such a way that the illegal method was not traceable.
Documents reporting information obtained from sources "illegal in nature" (Wire-
taps or microphones installed by means of break-ins) were to be sent to the FBI
director bearing the "June" notation." Clearly, then, headquarters files did not
duplicate field office files-although the relevant information obtained through
the particular investigation might be duplicated. Purging the field office files.
however, would mean the destruction of a record that could confirm the extent of
the FBI's illegal activities. As such, the field office files contain non duplicated
documents of "substantial" historic value.
When the National Archive's decision to authorize the FBI's field office
destruction plan was publicized, the resultant criticism impelled Archives officials
to conduct a purportedly thorough review of the rules and procedures governing
the destruction of FBI field offices files. Despite the evidence of the historical
value of the field office files, the National Archives concluded that the FBI's
headquarters files essentially duplicated field office files and that its investigation
of FBI investigative procedures and rules "clearly shows that administrative
procedures and investigative practices applicable to field offices creates (sic]
information that more than adequately documents cases forwarded to FBIHQ
[FBI headquarters]."
When I wrote to the National Archives and the FBI to challenge these find-
ings--citing instances of the discovery of break-in documents in field office files,
identifying the incompleteness of the FBI's central files owing to the "Do Not
File" procedures, and that the intent of the LHMs was to disguise how informa-
tion had been illegally obtained by FBI agents-Thomas Wadlow, the director of
the National Archive's Record Disposition Division, in effect reaffirmed the
findings and then ( amazingly) cited my example of the LHMs as confirmation.u
a John Rosenberg, The FBI Would Shred the Post, THE NATION (June 3, 1978), p. 653.
Letter, Bella Abzug (Chairwoman, House Subcommittee on Government Information and
Individual Rights) to Daniel Inouye (Chairman, Senate Select Committee on Intelligence),
June 4, 1976 (Xerox copy in authors possession).
m Memo, W.A. Branigan to A. H. Belmont, May 28, 1954, FBI 66-1372-11. Theoharis,
Bureaucrats Above the Law, . 394 and The Problem of Purging FBI Files, p. 48; John
Rosenberg, The FBI Shreds Its Files: Catch in the Information Act. THE NATION (Feb.
4. 1978), pp. 108-111 and The FBI Would Shred the Past, pp. 653-655; John Eluif,
The FBI and Domestic Intelligence, in Richard Blum (ed.), SURVEILLANCE AND ESPIONAGE
IN A Faze SOCIETY (New York : Praeger, 1972), ppp. 26-27, 30-81. BLACTSONE, COINTEL-
PRO, pp. ix, 204-211 ? Chicago Sun Times, Feb. 8, 1979, p. 10.
14 John Rosenberg, follow-Up; The FBP, Field Files, THE NATION (March 3, 1979), pp.
281-282. Office of Federal Records Centers, National Archives and Records Service
(NARS), "Disposition of Federal Bureau of Investigation Field Office Investigative Files,"
December 1978. Letters, Athan Theoharis to National Archivist James Rhoads, April 23 and
May 4, 1979 and reply May 9, 1979: Letter. Jean Fraley (Acting Director, Records Disposi-
tion Division, NARS) to Athan Theoharis, May 15, 1979 and copy of letter. Fraley to James
Awe (Chief, Records System Section, FBI). May 15, 1979: Letter, FBI Director William
Webster to Athan Theoharis, June 15, 1979 and reply June 5, 1979; Letters, Athan
Theoharis to Thomas Wadow (Director. Records Disposition Division, NARS), May 23,
August 24, and September 4, 1979 and reply August 28. 1979.
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Concurrent with this National Archives review, the FBI on May 4, 1977,
submitted another record destruction plan to the National Archives to spell out
which of the Bureau's "obsolete" headquarters files were to be sent to the
National Archives for permanent retention and which were to be destroyed. In
an interview with Los Angeles reporter Ron Ostrow, James Awe, the author of
this FBI headquarters destruction. plan, aptly characterized the preservation
procedure, saying: "Basically it down to [retaining] cases of national media
attention." Thus, while the FBI plan would preserve files in five identified cate-
gories, even within those categories "files with five or less volumes would gen-
erally not meet the criteria for a significant investigation or case and will be
destroyed after a review, to insure compliance with criteria, by an experienced
[FBI] employee."
The FBI also proposed to destroy "Security investigative files with supporting
retrieval devices after 30 years of no relevant activity." The FBI not only sought
exclusive reviewing authority to determine which records were of historical
significance but through the proposed destruction of "retrieval devices," the FBI
also could effectively avert discovery of its separate filing procedures and the
specific location of these records, since sensitive, separately filed documents were
cross-referenced in the FBI's case files for ready access.
In contrast to its earlier approval of the field office destruction plan, the
National Archives deferred action on the headquarters destruction plan. Instead,
relying on provisions of the Code of Federal Regulations mandating consultation
when in the public interest or when records would be of special interest to the
Congress, National Archivist James Rhoads solicited congressional advice.
Assigned responsibility to review this plan, the subcommittee on Administrative
Practice and Procedure of the Senate Judiciary Committee scheduled hearings
for June 1978. These hearings, however, were postponed and have yet to be held.
As one result, the FBI's headquarters destruction plan is still pending 16
One can well understand why the FBI would seek authorization to purge its
files and avert any external scrutiny of its record-destruction criteria, but the
National Archives's obvious reluctance to assume its reviewing responsibilities
would seem perplexing. An Internal FBI memorandum of June 7, 1976, written
by A. J. Decker (assistant director in the FBI's Records Management Division)
to FBI Deputy Associate Director Thomas Jenkins, however, highlights why,
absent protest by the public or the Congress, an intentionally incomplete historic
record will be preserved. This memorandum warrants lengthy quotation :
It now appears timely for the Bureau to reevaluate requirements for the reten-
tion of file material at FBIHQ beyond certain specified time periods and to
consider the retention period of 10 or 20 years after a case has been closed.
The Bureau has not previously sought destruction of investigative records of
substance at FBIHQ on the basis they were needed for reference in connection
with investigative and administrative needs and to satisfy requirements under
Executive Order (EO) 10450. . . . Additionally the National Archives and Rec-
ords Service (NABS) placed an indefinite retention period on all basic via atlon
categories because of their historical significance. NABS is now reluctant to acces-
sion records in large volume due to complications encountered as a result of the
Freedom of Information and Privacy Acts and records they previously felt should
he retained for historical reasons are now being reevaluated since they would be
responsible for responding to requests if they took control of the records... .
? r - * s ? s
Current NARS Pelicy. A representative from NARS in a recent discussion
regarding records expressed reluctance on the part of Archives to accession addi-
tional records in large volume due to complications encountered as a result of
the Freedom of Information and Privacy Acts. . . . Accordingly, many records
which NARS previously felt should be retained because of historical significance
are not receiving the same interpretation today because of the complications and
burdens of these Acts.
According to the current Records Retention Plan approved by NARS, there are
many categories of records the FBI is prohibited from destroying and once it
is determined the records no longer serve a valid purpose for FBI responsibilities,
the Bureau would be obligated to forward them to NARS for permanent reten-
m Theoharis, The Problem of Purging FBI Files, y 48; Rosenberg, The FBI Would Shred
the Past, pp. 863-666: Ron Ostrow, Some Researchers Oppose Destruction: FBI Plans to
Pound Obsolete Files into Pulp, Los Angeles Times, March 18, 1978. pt. II, p. S.
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I80
tion because of their historical value.... NARS can exercise their option to
retain the records if they believe they contain historical significance.
This position is now subject to reevaluation and there is an indication thaq
NARS will not be interested in obtaining the many categories of records that
were initially listed in the Records Retention Plan for historical reasons because
of the burdens and complications of the Freedom of Information and Privacy
Acts. . . . They most likely would now authorize the destruction of these records
once the Bureau determined they no longer serve a useful purpose."
The Freedom of Information Act might have been based on the democratic
principle of the public's right to know and thereby might for the first time have
permitted scholarly research into heretofore closed FBI files. As both the June 7,
1976, FBI memorandum and the proposed section 533c of S. 1612 confirm, neither
the FBI nor the National Archives endorses these principles and both are com-
mitted to circumventing the FOIA's access requirements.
Mr. PREYER. Let me ask each of you as historians this. Have you ever
sought or obtained under the Freedom of Information Act the names,
official titles, salaries, or number of personnel employed by the CIA!
Mr. GARDNER. My answer is, "No, sir." I have not.
Mr. THEOHARIS. No, nor have I, because my research interest is the
FBI. I would not be interested in that information as a historian.
Mr. PREYER. The point is that historians are not interested in Agee-
like disclosures about the CIA. That is not the mission for which you
seek information, I hope.
Mr. THEOHARIS. We are interested in, what would seem to me to be,
the very general language of sections (a) and (b) of H.R. 7056;
namely, what constitutes a source or potential source of information
or assistance.
Very indirectly my statement sought to address that. I perceive H.R.
7056 as excluding from disclosure important documents that, I think,
would prove to be very embarrassing to intelligence agencies if they
were released.
H.R. 7055 does not.
Mr. PREYER. That is right.
Your answer is that you do not mind embarrassing the CIA where
it ought to be embarrassed, but you are not out to get the CIA in the
way Agee is by revealing the names of sources of agents around the
world, and that kind of thing.
Mr. THEOHARIS. No; but we are interested in researching important
programs, procedures, and activities of the agencies. As I read H.R.
7056, a category of files would be exempted without judicial review
which would be released if we had judicial ,review. These would not
"Memo, A. J. Decker to Jenkins, June 7, 1976, FBI 66-??86-1197, produced in response
to discovery motion in suit American Friends Service Committee, et. al. v. William
Webster, et. al. Civ. 79-1655, June 1979. See also undated News Release of FOIA, Inc.
(86 W. 44th St., New York, New York 10036) on this suit brought by 51 Individuals and
organisations to enjoin the FBI and the National Archives from destroying FBI field office
flee. On January 10, 1980. Judge Harold Greene ruled in favor of the plnintiffs, ordering
the National Archives and the FBI to prepare within 90 days a disposal plan which would
insure the preservation of FBI field office files of "historical value." Milwaukee Journal,
January 11, 1980, p. 2. The Chronicle of Higher Education, 19 (Jan. 21, 1980), pp. 1. 4.
In public hearings conducted by The House Subcommittee on Government Informntion
and Individual Rights, moreover. staff counsel Ed Oleiman queried Acting Archivist James
O'Neill about the June 7, 1976 FBI memorandum. O'Neill claimed that the FBI memoran-
dum did not accurately 'convey NAR's position. There was no policy change, the NARS
simply would not accession files "as long as there is a significant volume of (FOIA)
activity." Not convinced by this explanation, Gleiman requested all NARS and FBI cor-
respondence "on this matter" and the name of the NARS representative cited in the memo-
randum. O'Neill lamely responded : "I do not know the names of the NABS representative."
Utldeleted transcript, U.S. House Committee on Government Operation, Subcommittee on
Government Information and Individual Rights. Hearings on National Archives and
Records Service, November 8, 1979, pp. 76-78.
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pertain to the language of your bill; namely, to a secret intelligence.
source or foreign intelligence agency..
As I thought I stated indirectly, if the agencies defined these as
sources or assistance they would be exempt iuider. H.R. 7056.
Mr. GARDNER. May I give another example of the kind of thingthat
I think is creeping in here? One of in y colleagues, Prof. Walter.
LaFeber, of Cornell University, had a student who was working on the
reaction abroad to the publication of ;the 'entagon Papers.
At the time that Pentagon Papers were published criticism was,
made by the Government that this would affect current negotiations
and embarrass foreign governments. Using the FOIA this student ob-
tained from the Department of State the information that they had
in fact solicited complaints from foreign governments. in order, to
establish the point that they sought to make; namely, that this was
embarrassing. They had only received one complaint from Canada
about the naming of an official.
The language in H.R. 7056 yields itself to that kind of solicitation
of complaints from other governments which goes beyond the percep-
tion problem we talked about this morning. It is an attempt to create
grounds against the release of information, grounds which may not be
valid at all.
Mr. PREYER. Let me ask you one other more specific question. On
May 6 of this year the CIA proposed a rule to limit special privileges
that have been enjoyed by security cleared `historians in obtaining
classified information by the Agency. Their proposed rule implies
that historians should first ask that information be declassified under
the Executive order.
How would this effect your research if it were put into effect?
Mr. Ti oHARis. It would really have a crippling effect. If we begin
with the point I tried to make that we did not know what the CIA
was doing in the past and we have a limited understanding, based upon
the reports and hearings of congressional committees. We can now use
the mandatory review provisions of the Executive order to ask for the
declassification of those documents.
However, if at the same time you have a situation in which the intel-
ligence agencies have these separate filing procedures-both the CIA
and the FBI-there is no way that we can receive a full record unless
we employ the mandatory search and disclosure provisions of the
FOIA.
I think we come back, then, to this legislation as enabling us to re-
quest and to secure a fuller record of the past activities and policy deci-
sions of the intelligence agencies which is not possible-if you had
asked me, for example, whether the FBI's preventive detention pro-
gram is based upon the McCarran Act of 1950, 5 years ago I would
have said, "Yes, it was." However, as a result of the Church commit-
tee's reports we found out that the FBI in conjunction with the De-
partment of Justice had initiated a program in 1948 under different
standards.
Therefore, I would not have been submitting requests for documents
that pertained to an earlier initiated program because I would have
had no such knowledge.
Under the FOIA you can submit requests for all documents pertain-
ing to anything under the detention programs and those documents
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will have to be released. In that sense, I think we will have a fuller
record that will circumvent these separate filing procedures that the
agencies have resorted to and a more accurate record as well.
Mr. PREYER. Thank you.
Mr. Drinan?
Mr. DRINAN. Thank you, Mr. Chairman.
I wonder if both witnesses would respond to this: namely, that in
H.R. 7055 there is added a 10th exemption to the FOIA which would
ban the release of information-
Obtained under an express promise of confidentiality, by the Central Intelligence
Agency either (A) from a secret intelligence source, or (B) from a foreign
intelligence service.
The Society of Journalists, whose statement we have, feel that they
could go along with that. I wonder if both witnesses will comment on
that proposed 10th exemption.
Mr. GA WNER. Historians work on a longer range than journalists
do generally. If this law is to be interpreted as reaching back 40 or 50
years, then I do not think historians would be particularly happy about
it, particularly if we are talking about questions pertained to the
origins of World War I from intelligence services to the German Gov-
ernment, the Austrian Government, and so on.
I do not think historians could live with it if it were so unlimited so
that it could just go on forever.
I think that many personnel files and intelligence files at the Depart-
ment of State are now classified for 50 or 75 years, but there is no per-
manence. Under that kind of a restriction presumably you could
never
Mr. DRINAN. Assuming that there is some statute of limitations,
would you feel that this 10th exemption would meet Mr. Carlucci's
objectives without completely shielding the CIA from public scrutiny Y
Mr. THEOHARIS. I could. I have no problem with H.R. 7055.
In the past, as historians, we have confronted the classification of
documents. What the FOIA permitted us is the ability to challenge
improperly classified documents. That was a tremendous boon to his-
torical research. That is a point that I would like to make and
emphasize.
I have no problem with H.R. 7055. I could support it. My problem.
is with the language of H.R. 7056, which I think is open ended. I do
not think it is restrictive.
I see that assistance from sources as enabling the agencies to deny to
release information which could be simply embarrassing and not in-
volve the national security.
Speaking only as one historian, not for the profession, I have no
problem with endorsing H.R. 7055.
Mr. DRINAN. Thank you.
On another topic, how efficient is the CIA in locating all of these
things? I have had a little bit of experience and they seem to be very
slow. I do not think that they know where some of these things are. I
am not sure that they have classified them or indexed them through
the years.
What is your experience ?
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Mr. THEOHARIS. When John Blake testified before the Senate sub-
committee he noted the difficulty-he was the former acting CIA
Director in 1977. That was before the Administrative Practices and
Procedures Subcommittee. He noted the difficulty the CIA confronts
because they do not have merely a centralized record system.
Describing the CIA's filing procedures, Acting CIA Director Blake
stated that :
Within the Agency, there is no single centralized records system. For reasons
of security and need-to-know, there are a number of records systems designed
to accomplish the information retrieval needs of the various Agency components
and the Agency's clients.
Continuing, the Acting CIA Director described the difficulties this
complicated filing system posed to the CIA when processing FOIA
requests :
The CIA's principal business is the collection and production of intelligence.
The Agency's files are set up to accomplish this purpose. Since much of the
Agency's business is, by necessity, secret, the FOIA requestors on a certain sub-
ject cannot describe these records with precision. Thus, the very first step in
processing FOIA requests, that of searching for and identifying records, is often
complicated and difficult.
That is a serious problem. That is why FOIA, in its importance to
historians, is great legislation, because CIA officials are mandated to
do that full record search. Under that mandate we are assured of
receiving a full record of their past activities.
If it is because of their separate filing procedures that there is this
dilatory response to FOIA requests, that,is inevitable. If, as Mr. Hal-
perin suggested, there is a strategy of awaiting the amendments to the
FOIA so that they do not have to honor the requests, that is another
matter. I have no way of answering that because I am not
knowledgeable.
Mr. DRINAN. Mr. Gardner?
Mr. GARDNER. There is a related problem here. I think some histo-
rians would make the argument that the FOIA perhaps, impedes regu-
lar declassification procedures. That is, if the Government can simply
wait out FOIA requests it will slow down its regular declassification
procedures.
I think there is.some merit to this. objection. It was raised by Pro-
fessor Kirkendall in his testimony before the, Senate Intelligence
Committee.
The FOIA is not perfect for historians by any means; because there
are all kinds of dodges. I remember one time f had given an address
at a convention in New Orleans when a representative from the NSA,
which is even more secret than the CIA, came up to me and said
I was not even supposed to come to this convention. I finally convinced my
supervisor that I should. I could not wear a badge saying: that I was NSA. I can
tell you that the declassification problem goes all the way back pre-World War II.
We have stuff at NSA on Japanese documents before World War II that are
really dynamite.
I have no way of knowing whether or not this is true. FOIA has
really hardly touched NSA at all compared-to the CIA.. -
I mould hate to see us assume that simply leaving the FOIA in place
is a satisfactory answer to the burgeoning problem of declassification.
It is not.
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In my statement I tried to talk about changing, attitudes .toward
declassificaion, which I find very alarming at the present time.
Mr. DxiNAN. I thank you both for your very helpful testimony. I
yield back the balance of my time.
Mr. PREYER. Thank you.'Mr. Butler.
Mr. BuTr.Ea. I have no questions.
Mr. PREYER. Mr. Evans?
Mr. EVANS. I have no questions either, Mr. Chairman.
Mr. PJEym. Thank you.
We appreciate your being with us today. Your comments have been
very helpful.
Our next witness is Mr. William Corson, who has written on intelli-
gence operations and who brings us the perspective of someone who
has been detailed as a military man to the CIA.
Our final witness is Mr. Robert Lewis, who can tell us about the needs
of journalists who use the Freedom of Information Act to obtain intel-
l gene information.
Mr. Lewis, would you mind joining Mr. Corson here at the table.
We will treat you as a panel.
It is good to have you here today. First we will call upon Mr. Cor-
son. Your statement will be made a part of the record and you may
summarize it as you see fit.
STATEMENT OF WILLIAM R. CORSON
Mr. Coxsox. Mr. Chairman, thank ,you for the opportunity to
express my views about contemplated moves designed to limit public
access to Government information currently available under the pro-
visions of section 552 of title 5, United States Code, known as the
Freedom of Information Act.
First, let me say that these views are based on my 26 years of service
as a career marine during which I served in a wide variety of opera-
tional and staff intelligence assignments both in the Department of
Defense and with other members of the so-called intelligence
community.
Second, since my retirement in 1968 I have maintained my interest
in intelligence matters and have written several books which deal with
the problems, policies, and uses of intelligence, the most recent being
the "Armies of Ignorance : The Rise of the American Intelligence
Empire," published in 1977 by the Dial Press.
Finally, I come before you as a citizen who is deeply concerned that
the CIA's attempt to further restrict FOIA access to its files, indexes,
and documents is a bureaucratic Trojan horse.
Admittedly, all of the agencies and departments, from the Agricul-
ture to the Veterans' Administration, would prefer not to be burdened
with the task of responding to the public's requests for information.
Nonetheless, the FOIA is the law of the land and as such it compels
Federal agencies to provide the means and procedures to make infor-
mation available to the public unless it comes within one of the specific
categories of matters exempt from public disclosure.
That said, the question arises whether the CIA, or any other agency
of the intelligence community, should be provided with further
exemptions.
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111 immediater response is: Z think 'not. The CIA's case, in my
opinion,, reflects the Scottish verdict-not proven.
Based on my experience and that of others in requesting and/or
using-material provided under FOIA by the CIA, there is no evidence
to suggest that our national security or the Agency's sources and
methods have been imperiled or compromised.
If, on the other hand, the issue is one of CIA embarrassment put
to the revelations of ineptitude, then the FOIA is clearly a culprit.
Through use of the act scholars, historians, and journalists have been
able to contrast the public rhetoric surrounding events with what was
actually believed and happened. This, in my judgment, is a positive
value.
It is more than an exercise in revisionist history. Rather, it provides
the means to evaluate what went wrong, or right, and why. These ques-
tions cannot be left to the tender mercies of those who have a .proprier
tary interest in their agency, their position, and prospects for promo-
tion.
Recent books--such as Joseph Wyden's "Bay of Pigs," William
Shawcross' one about the secret bombing of Cambodia, and David
Martin's "Wilderness of Mirrors" which deals with the CIA's fruitless
search for a mole-underscore the worth of the FOIA in providing our
people with a more accurate rendition of events and the roles of those
involved.
Besides this, there is the worth in really knowing the past as a means
to deal with a difficult present and a more uncertain future.
The FOIA is no magic elixir. To be sure it is helpful. However, by
themselves Government documents rarely provide the whole story.
To get the whole story one must pursue the leads and persons revealed
in those documents.
Compliance with the FOIA varies from agency to agency. Here the
issue is largely one of reconciling the letter and spirit of the law with
the bureaucratic interests and tendencies of the respective agency.
In the case of the CIA, its responses to FOIA requests are predict-
ably unpredictable. Sometimes information which is potentially em-
barrassing is freely given. Other times one must literally get into a
running battle to get information which on the surface poses no
embarrassment to. the CIA or .the U.S. Government.
Similarly, woebetide the FOIA requester who attempts to fish in
the CIA's waters if he or she does not know precisely the name, rank,
and serial number of the quarry they seek, especially if that quarry
might lead to something the Agency prefers to keep from public view.
In such a case the CIA will frequently sav, ` No, you cannot have the
information for thus and so reasons," adding, "You have the right to
appeal and if the answer is still No you can go to court." 'this- re-
sponse effectively stops most persons because the time and cost in-
volved in forcing the CIA to justify its decision is more than they
can afford.
Though I understand the bureaucratic imperative which under-
lies the CIA's response to FOIA requests, I neither believe it serves the
Agency's true interests nor those of the U.S. Government. Here, let
me say that I believe that secrecy for the sake of avoiding an assess-
ment of intelligence operations and estimates which went awry or
were in error is an egregious error.
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186
Intelligence post mortems need to be accomplished and the POIA
exists to enable other than those whose reputations may be involved to
carry them out.
In denying some FOIA requests, the CIA is clearly worried about
where divulging a specific item of information may lead. This is
understandable.
Unfortunately, however, denial on those grounds leads to a skep-
ticism and disbelief in the Agency's commitment to the public's right
to know within the FOIA's limits. For example, we were denied in-
formation by the CIA concerning the activities of a Soviet agent
thought to have been the control of British spies Burgess and McLean
during the period 1944-51 when all three were stationed here in
Washington.
Without going into the specifics which lead to the request, the
Agency's denial was broadly based on the Soviet agent's rights under
the Privacy Act. I can only wonder in this matter who or from
whom the CIA is protecting me and those members of the public
with a continuing interest in the machinations of the Soviet KGB
here and elsewhere in the free world.
One can also measure the sensitivity or potential embarrassment
of an FOIA request to the CIA by the amount of delay it engenders.
Admittedly, a backlog of FOIA requests does exist at the CIA. How-
ever, this does not explain fully why some requests are acknowledged
more rapidly than others. Here, I am not talking about the response-
that is, the actual reproduction and sending of requested informa-
tion-but rather the notice saying, "We have your request and it is
being studied" "or acted upon," and so forth.
In several instances which involved 3 to 4 months' delay before
receiving any reply, it was clear to me that the request had set off
alarm bells and whistles among those in the Agency who were caught
between the rock of keeping dubious secrets and the hard place of
the FOIA.
I imght add that one way the CIA could clear much of its FOIA
request backlog is to become a more actively willing participant in
the interagency declassification process. Much of the information
the CIA is nattering about has long since belonged in the National
Archives rather than being a current bone of FOIA contention.
The difficulties in using the FOIA to get information from the
CIA are understandable-they are part of the game. Most scholars
know this and those who do not soon learn the rules if they wish
to use the act. Whether the CIA's tactics are acceptable to the Con-
gress is not for me to say.
Here, I am not prepared to go into what I may think is required
to improve the FOIA. Rather, it is my opinion that the Congress
should be encouraged by the CIA's attempt to gain further exemp-
tions from the FOIA. That, to me, is the best evidence that the FOIA
is workinc?, albeit not completely as some might prefer, but never-
theless still working.
Today, as you consider the CIA's request to get partially out from
under the FOIA, I think it is worthwhile to come back to my first
point. The CIA has not made its case. There is nothint in the thousands
of pages of material which the Agency has released that threatens
national security or imperils its sources and methods. Nor do I believe
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that their case can be made in executive session before any of the ap-
propriate committees of the Congress.
On the other hand, as a citizen, I am more comfortable in knowing
that I and other scholars can use the FOIA to seek the truth and use
that truth to inform our fellow citizens. Intelligence is important and,
in paraphrase of Clausewitz, it is too important to be left solely to the
spooks and spies who brought us assassination plots, drug experiments,
the Bay of Pigs, Operation Chaos, and Lord knows what else.
Thank you, Mr. Chairman. That is my statement.
Mr. PxEYEre. Thank you, Mr. Corson.
Let us hear from Mr. Lewis before we go to questions.
STATEMENT OF ROBERT tEWIS, CHAIRMAN, FREEDOM OF INPOE-
MATION COMMITTEE, SOCIETY OF PROFESSIONAL JOURNALISTS;
ACCOMPANIED BY PETER C. LOVENHEIM, PROJECT DIRECTOR,
FREEDOM OF INFORMATION SERVICE CENTER
Mr. LEwzs. Thank you, Mr. Chairman. We appreciate this oppor-
tunity to discuss H.R. 7055 and H.R. 7056.
Accompanying me is Peter C. Lovenheim, research attorney for the
Society of Professional Journalists, who is a project director of the
Freedom of Information Service Center located here in Washington.
The center is a joint effort by the society and the Reporters' Com-
mittee for Freedom of the Press to assist journalists in using the Fed-
eral and 49 State freedom of information acts.
In a little more than 1 year since the center opened, several hundred
reporters have relied on its facilities for help in using the new genera-
tion of FOIA laws that have shed light on Federal and State govern-
ment operations to a degree unknown in most of the world.
I think this subcommittee is to be commended for its role .in passing
the original 1966 act and subsequent amendments. Some of the dis-
closures that have come out about the CIA, in our opinion, show that
the act is working as Congress intended it to work.
If my statement will be appended in the record,. I would like to
touch on two or three points in it.
The society agrees with the previous witnesses this morning that the
CIA has not made a case for a blanket or even. a partial exemption
from the Freedom of Information Act. If there is a .perception in for-
eign intelligence communities that their secrets might leak out as a
result of our FOIA, we think that that can be dealt with, first, by
the CIA continuing to do as Mr. Carlucci says it has been able to do-
that is. to keep its legitimately classified secrets secret.
If there is a perception problem, we believe that the .language of
H.R. 7055 would appear to answer it, although, as I said earlier, we
do not think that any remedy has been shown to be needed by the CIA.
However, if the subcommittee does consider H.R. 7055, we think
the bill would be improved by restricting its application only to con-
fidential information obtained from confidential sources. This would
bring it into conformity with the standard and the (b) (7) exemption
of the existing law, which, as you know, prohibits the release by in-
telligence agencies of "confidential information furnished only by the
confidential sou=L",
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Mr. Chairman, we are more troubled by the Justice Department's
proposal in H.R. 7056 which would allow the CIA and other Federal
intelligence-gathering agencies to withhold three extremely broad cate-
gories of information by merely certifying that the data cannot be
released.
The exempted categories are "intelligence obtained from a person,
entity or organization other than a person employed by the U.S. Gov-
ernment." That would appear to cover virtually all information orig-
inating outside the CIA, whether or not it is confidential.
The second category is "information which identifies or tends to
identify a source or potential source of information or assistance to an
intelligence agency." This appears to be so loosely worded as to cover
every citizen because virtually everyone is a potential source of
information.
Finally, the bill exempts "information concerning the design, func-
tion, deployment, exploitation or utilization of scientific or technical
systems for the collection of intelligence, but not including any re-
search programs which involve experimentation with or risk to the
health or safety of human beings," which would appear to be a step,
albeit a small one, in the direction of barring mind control experi-
mentation on humans.
The second category of exempted information would be less sweep-
ing in scope if it were made to apply only to sources of confidential
information, rather than to all sources and all potential sources of all
information. As it reads, it would put data obtained by an intelligence
agency from information repositories such as libraries and news-
papers off limits to FOIA requests.
H.R. 7056 also is objectionable because it bars judicial review of a
CIA decision not to certify the release of a given body of information.
In effect, it would allow-the CIA to censure what it releases without
court review of whether the Agency was following the intent of
Congress.
Prohibiting judicial review would have another adverse effect, Mr.
Chairman. It is Congress stated intent that entire records or files
should not be withheld under the FOIA merely because portions of
them are exempt. This was the substance of the 1974 amendment re-
quiring all agencies to disclose any reasonably.segregable nonexempt
portion of an otherwise exempt file or record.
Clearly, this requirement can be enforced only when a judge has the
ability to review in camera the entire record or file withheld by an
agency. By prohibiting judicial review, H.R. 7056 would effectively
prevent segregation of nonexempt intelligence materials and permit
the withholding, once again, of entire files and records.
Finally, Mr. Chairman, it is extremely difficult for amateurs in the
intelligence field, such as journalists are, to pass judgment on this bill
without an intimate knowledge of how the information .gathered by
the CIA is organized and categorized. Does H.R. 7056 apply to 25
percent of all data gathered and generated by the CIA in a year, or
50 , ercent, or 90 percent?
To properly assess the bill, we would have to have a better reading
from the CIA on how it would impact upon the A ency. I would hope
the subcommittee would try to get from the Central Intelligence
Agency a better understanding of what H.R. 7056 actually does.
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Thank you, Mr. Chairman.
Mr. Pi r . Thank you very much, Mr. Lewis.
Without objection, your entire statement will be included in the
record :at this point.
[Mr. Lewis' prepared statement follows:]'
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190
Statement of the Society of Professional Journalists,
Sigma Delti Chi.
Delivered by Robert Lewis
Chairman of the Freedom of Information Committee
Before the House Government Information and Individual Rights Subcommittee
of The House Committee on Government Operations on H. R. 7055
and 7056 and related legislative proposals
Mr. Chairman, I appreciate this opportunity to discuss H. R. 7055 and
7056. My name is Robert Lewis. I am a Washington correspondent of Newhouse
Newspapers and chairman of the Freedom of Information Committee of the Society
of Professional Journalists, Sigma Delta Chi. The Society, as you may know, is
the world's largest and most representative organization of journalists. Founded
in 1909, we have 300 chapters and 35, 000 members in all branches of communi-
cations.
Accompanying me is Peter C. Lovenheim, research attorney for the
Society who is project director of the Freedom of Information Service Center
located in Washington. The Center is a joint effort by the Society and The Report-
ers Committee for Freedom of the Press to assist journalists in using the
federal and 49 state Freedom of Information acts.
In a little more than a year, several hundred reporters have relied on the
center for help in using the new generation of FOI laws that have opened federal
and state government to a degree unknown in most of the world.
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Mr. Chairman, the Society accepts the necessity for a degree of secrecy
in foreign intelligence operations even though secrecy in the conduct of public
affairs is alien to this country's political heritage and is not consistent with the
spirit of the Freedom of Information Act. But we believe Congress must balance
secrecy requirements with the desirable goal of conducting the public's business
in the open.
A balance between secrecy and sunshine was achieved with the passage
in 1966 of the Freedom of Information Act, which requires the Central Intelligence
Agency to disclose only those materials which do not harm the national security.
The CIA is permitted to withhold information which "could be expected" to impair
the national security; it need not prove damage, only the expectation of damage.
The FOI Act contains nine categorical exemptions, several of which are
available to the CIA if it desires to contest a Freedom of Information request.
The CIA can withhold data involving "internal personnel rules and practices;"
"inter-agency or intra-agency memorandums or letters;" personnel files which,
if disclosed, would constitute an invasion of privacy; and records which would
disclose the identity of a confidential source or investigative techniques. or
"endanger the life or physical safety of law enforcement personnel."
For the CIA to seek a near blanket exemption from the FOI Act, one
might expect there has been a plethora of disclosures of classified data as a
result of FOI requests. Just the opposite is the case, however. Frank Carlucci,
CIA deputy director acknowledges that the FOIA has not led to the disclosure
of national intelligence secrets. Sensitive data "is and will continue to be well
protected," Mr. Carlucci said last February 20.
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What the CIA is concerned about is the perception of United States allies
and foreign agents that America's FOI Act will compromise their intelligence
operations; that intelligence secrets will leak out through use of the FOIA. "It
is, in the final analysis, their perception -- not ours -- which counts, " Mr.
Carlucci says.
The Society believes that the CIA can best deal with this concern by con-
tinuing to keep its legitimate secrets secret. And, if it is a problem of how foreign
agents perceive the FOIA, a perceptual solution would be preferable to the pro-
posed FOIA blanket exemption. H. R. 7055 would add a tenth exemption to the
FOIA which would ban the release of information .. "obtained, under an express
promise of confidentiality, by the Central Intelligence Agency either from a
secret intelligence source or from a foreign intelligence service. " While the
Society believes the current FOI Act is adequate as is and should not be changed,
the language of H. R. 7055 would appear to answer the specific objection raised
by Mr. Carlucci without completely shielding the CIA from public scrutiny.
However, we believe this bill should be amended to restrict its application only
to obtain confidential information from confidential sources. This would make
it conform to the standard in the B-7 exemption of existing law, which prohibits
the release by intelligence agencies of "confidential information furnished only
by the confidential source. "
We are more troubled by the Justice Department's proposal. H. R. 7056,
would allow the CIA and other federal intelligence- gathering agencies to withold
three extremely certifying that the data should not be released.
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The exempted categories are: "intelligence obtained from a person, entity,
or organization other than a person employed by the U. S. government" (which
covers all information originating outside the CIA, whether or not it is confiden-
tial); "information which identifies or tends to identify a source or potential source
of information or assistance to an intelligence agency, " (which is so loosely
worded as to cover every citizen because virtually everyone is a "potential" source
of information); and "information concerning the design, function, deployment,
exploitation or utilization of scientific or technical systems for the collection of
intelligence, but not including any research programs which involve experimen-
tation with or risk to the health or safety of human beings (which is a step, albeit
a small one, in the direction of barring mind-control experimentation on humans.)
The second category of exempted information would be less sweeping in
scope if it were made to apply only to sources of confidential information rather
than all sources and potential sources of all information. As it reads, it would
put data obtained from information repositories, such as libraries and newspapers,
off limits to FOI requests.
H. R. 7056 also is objectionable because it bars judicial review of a CIA
decision not to certify the release of a given body of information. In effect, it
allows the CIA to censor what is released, without court review of whether the
agency was following Congress's intent.
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Prohibiting judicial review would have another adverse effect. It is
Congress' stated intent that entire records or files should not be withheld under
the FOI Act, merely because portions of them are exempt. This was the substance
of an amendment to the Act in 1974 requiring all agencies to disclose any "reason-
ably segregable" non-exempt portion of an otherwise exempt file or record.
Clearly, this requirement can be enforced only when a judge has the ability to
review, in camera, the entire record or file withheld by an agency. By prohibi-
ting judicial review, however. HR 7056 would effectively prevent segregation
of non-exempt intelligence materials and permit withholding once again of entire
files and records.
Further, H.R. 7056 fails in its broad categroical exemption powers to
segregate classified information from non-classified information: all data within
the three broad categories would be off-limits to the public and the press -- once
the CIA director "or a designee" decided that such information should be withheld.
It is difficult to pass judgment on H. R. 7056 without an intimate knowledge
of how information gathered by the CIA is organized and categorized. Does H. R.
7056 apply to 25 percent of all data obtained by the agency? Or 50 percent? Or
90 percent?For the Society to properly assess the bill, we need to have a better
reading from the CIA of how it would impact on the agency.
Mr. Chairman, as you know reporters have made widespread use of the
Freedom of Information Act to write stories about CIA activities- -stories which
while not desclosing confidential information did cast the agency in poor light.
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Disclosures of illegal or questionable CIA break-ins, interception of mail,
wiretapping and surveillance of peaceful and lawful antiwar and civil rights
groups have received wide circulation, and helped foster a public opinion climate
that resulted in the CIA Charter proposals recently introduced in Congress. A
Survey of news stories written from documents released under the FOIA was
contained in a February 16, 1980, report of the Congressional Research Service
and included:
(1) The CIA conducted far broader domestic surveillance during the
Vietnam War than had been reported. For example, the agency kept files that
indexed 50, 000 members of the California Peace and Freedom Party.
(2) The CIA infiltrated black activist organizations, the Resurrection
City encampment in Washington and the District of Columbia school system in
the late 1960s despite its own findings that black militant groups at the time
posed no threat to the agency.
(3) The CIA explored the prospect of an individual being induced to commit
an assassination against his or her will through behavior control.
(4) The CIA considered experimenting on terminal cancer patients under
the guise of "legitimate medical work" in an effort to find ways to "knock off
key guys" through such natural causes as heart attacks.
A report by the Center for National Security Studies listed 50 articles or
books that had been based entirely or partially on CIA documents declassified
through the FOI.
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Among them were:
(1) Illegal domestic intelligence, including the stationing of agents on
problem campuses" and opening the mail of U. S. citizens.
(2) The use of satellites by the CIA to spy on anti-war protesters in the
United States.
(3) Secret "mind manipulation" experiments on human subjects.
In addition, historians used the FOI Act in the preparation of scholarly
background studies on American policy toward Greece in World War II, the Bay
of Pigs invasion of Cuba, Truman's decision to intervene in Korea, the Cuban
missile crisis and the penetration of Nazi Germany by American secret agents in
World War II.
Clearly, the Freedom of Information Act, as it applies to the CIA has
contributed in a major way to public knowledge and understanding of what is an
increasingly important activity of government. And it has helped to keep the CIA
accountable to the citizens it serves.
For the CIA to seek a sweeping exemption when a case has not been made
for one raises the suspicion that the Agency really wants only to avoid a repetition
of the embarrassing disclosures of the past. Thank you, Mr. Chairman.
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Mr. Paem it Mr. Corson, let me ask you this. You talked about the
unpredictability of the CIA's response to requests for information. In
your experience, is the CIA's response to requests evenhanded in the
sense that critics and friends of the Agency receive similar treatment or
dissimilar treatment?
Mr. Coasox. That is a compound question, Mr. Chairman. If one
is going to write a pro-Agency book he will find that a good bit of
material will be made available to him under FOIA or otherwise,
whereas a critic may not receive similar treatment.
As I mentioned, the aspect of unpredictability is very similar to
going before Tax Court. You do not know who is going to be in the
chair that day. Sometimes you will get a rather quick response and
say, "Gee ! I did not think I was going to receive that much." It is
extremely uneven.
One factor in that unevenness is, again, the embarrassment potential
that is involved. Some time ago I had requested information which I
knew existed. I wrote to that effect. I wrote to it in a book and I asked
for additional information. It was information that had been provided
to the Church committee as well.
It was actually item 16 in the so-called Family Jewels. The CIA had
no information whatsoever, they said, relative to it. That was because
they did not want to unearth or open up the Agency's involvement in
the drug traffic in Southeast Asia. That is why. It was just a matter of
embarrassment. It was illegal activity or activity that was not in the
Congress knowledge and, in one sense anyway, probably not even in the
President's knowledge.
Another case in point is what I call the case of the three wives. There
is a question, of course, about personal information. One must be as-
sured that you are either the next of kin asking for personal informa-
tion about someone or that the next of kin is gone.
There are three wives whose husbands have died under very strange
circumstances. One was John Arthur Paisley who died in the Chesa-
peake Bay several years ago. It was a strange, bizarre case of a man
who was a low, low level employee. As more was revealed about John
Paisley he was much more than that.
I have seem the correspondence between Mrs. Paisley and Admiral
Turner and it is rather interesting.
A second was the disappearance of an agent called Schadrin in
Vienna in 1976. Mrs. Schadrin, up to a point, was receiving a Ereat deal
of support from the Government in trying to find out what happened
to her husband.
The third one is the wife of Ralph Sigler. Ralph Sigler was elec-
trocuted in one of the most bizarre suicides that has occurred in
modern times in a motel in Maryland.
I mention these because when Mrs. Sigler was just trying to find
out what happened to her husband-she had a general idea about
what he had done-Mr. Alexander, the, Secretary of the Army, re-
sponded to her and said that he could not reveal the information
to her or to her attorney because of Executive privilege. I have not
heard that word around this town for awhile but it was used by the
Secretary of the Army in this regard.
These are three very strange cases. There are other murders that
go back.
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One would think that those women should be allowed to have the
information that they need. As a matter of fact, in the correspondence
from Admiral Turner to Mrs. Schadrin he lied. He lied in his state-
ment to her.
Mr. PREYER. Let me ask Mr. Lewis this and maybe Mr. Corson
would want to comment on it too. In the documents that have been
released to you through the Freedom of Information Act do you find
that the CIA has been effective in deleting information from the
documents so that sources could in no way be identified? This is the
great fear that sources like the Polish colonel have, that they could
be identified when they should not be identified.
Do you find that the CIA has been effective in deleting that in-
formation that could identify a source or is there slippage there l
Mr. Lewis. I personally have not used the act to get information
on the CIA. I have used it in a number of other instances. From
documents I have seen, that the CIA has released to other reporters
and other individuals in response to FOIA requests it has been my
experience that they have been more than effective in deleting any
references that would compromise their intelligence gathering or the
names of informants.
Mr. PREYER. What have you found in writing your books, Mr.
Corson?
Mr. CoxsoN. Occasionally they make a mistake. I have been on
both sides of the fence on this particular issue. Occasionally in the
Agency's response they have made an error in the sense that, if I
had been on the other side of the fence, I would not have named that.
particular source in the document.
You can construct how this occurs. It was that the people who
were carrying out the review of it had not circulated it sufficiently
within the Agency for appropriate comment and review. If it had
come to me in that particular case I would have deleted that name.
I would have left some of the other material.
By and large, however, the shielding of confidential sources is ex-
tremely effective. I would say that something else happens on a few
occasions, as I have mentioned, but they have been low level sources
and I think there has been no great hazard to national security in any
way, shape, or form.
Mr. PREYER. The CIA has previously sugeested limiting access to
finished intelligence products. I wonder if either one of you would
have any comments on the impact that that kind of restriction might
have on requesters of information or on the different kinds of material
that it might make available.
Mr. LEwis. As I understand it, they voluntarily release the results
of finished intelligence reports now. You do not have to go through
the Freedom of Information Act, so to give that away is to really
give nothing.
Mr. PREYER. If you limit it just to that, then I guess what you are
saying is that you are in effect undercutting the whole Freedom of
Information Act.
Mr. LEWIS. You would be giving the CIA the blanket exemption it
sought in the CIA charter legislation before the House Intelligence
Committee, I would suspect.
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Mr. CORSON. I think, Mr. Chairman, this is part of this Trojan
horse. This must be its tail. They are in the business. There is no such
thing as finished intelligence.
Mr. PREYER. I guess we are speaking in terms of words of art, rather
than reality. There is a category described as finished intelligence, is
there not?
Mr. CORSON. Yes. We can say it is an intelligence report, but it would
deal with a segment of time. If they are prepared to say that a seg-
ment of time-if that segment of time can be separated, then that is
fine.
Take the Bay of Pigs. The beat goes on with respect to our intelli-
gence activities in Cuba. If it is all considered to be part of a con-
tinuum then the finished intelligence will never, as I see it, be com-
pleted.
I have gone overseas, come back, and literally found people in the
JCS working on the same project that they were working on 3 years
before. It never ends. Our conflicts with Communists around the world
are continuing. They do not stop.
Mr. PREYER. Mr. Lewis, let me ask you how effective the Freedom
of Information Act is in a business that has pressing deadlines to
meet.
Mr. LEwis. It is very difficult when a reporter is on a deadline and
he needs a piece of information to complete a story that he is writing.
It is difficult when he is held up for days or weeks at a time.
One saving grace is that some agencies will just automatically ask
a reporter to le an FOIA request and will just automaticallyV turn
the information over, but some agencies have adopted a policy of re-
leasing information that may be in a grey area as to whether it should
be released voluntarily or not, wherein they automatically ask a re-
porter to file an FOIA request, and he can have it tomorrow.
Mr. PREYER. Have you found any indication that the CIA, knowing
that you are up against deadlines, delays release of routine information
beyond the deadline period?
Mr. LEwis. I have no personal information on that.
Mr. PREYER. Are there any questions that the staff wishes to ask at
this time.
(General response of "No."]
Mr. PREYER. We do want to thank you for being with us today. We
want to thank all of the witnesses who have given us their thoughts
today on whether or not the Freedom of Information Act ought to be
further amended to further exempt intelligence information from dis-
closure. We will look forward at a later date to what the CIA and
other experts feel about the views that have been expressed here
today.
Your views have been very helpful and very interesting. We will
look forward to keeping in touch with you on this as we continue to
discuss this legislation. Thank you very much.
Thn committee stands adjourned.
rWhereupon, at 11:45 a.m., the subcommittee adjourned, to recon-
vene subject to the call of the Chair.]
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APPENDIX
SUMMARY OF FREEDOM OF INFORMATION ACT LITIGATION INVOLVING
THE CENTRAL INTELLIGENCE AGENCY PREPARED BY THE CONGRES-
SIONAL RESEARCH SERVICE (FEBRUARY 1980)
The Central Intelligence Agency has proposed changes in existing law which
would relieve it of many of the burdens. of FOIA requests and litigation. The
Director presently is "responsible for protecting intelligence sources and meth-
ods from unauthorized disclosure" (50 U.S.C. 403(d)(3), 403g). The proposed
amendments would be in "furtherance of " that responsibility and would provide
that "information in files maintained by an intelligence agency or component of
the United States Government shall also be exempted from the provisions of any
law which requires publication or disclosure, or search or review in connection
therewith, if such files have been specificially designated by the Director of
Central Intelligence to be concerned with:" (there follows a listing of such
matters as material related to the collection of foreign intelligence or counter-
intelligence, special operations, source investigations, and liaison and informa-
tion exchange relationships with foreign governments). An exception to the fore-
going exemption is made for information contained in designated files on citizens
and permanent resident aliens which is requested by such persons.
Thus, information contained in specifically designated files would, under
the proposed amendments, not only be exempt from disclsoure but the custodian
of such information would also be relieved of the duty to search for informa-
tion in such files in response to an FOIA request. The thrust of recent FOIA
litigation involving intelligence or national security information has been the
procedural aspects of an intelligence agency's response to FOIA requests and
lawsuits. Little information has actually been ordered released. The posture
of the recent cases has been mainly a review of the adequacy of agency showings
justifying withholding of particular information. Once adequate justification
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is proffered by the agency, information sought to be withheld has not been
ordered disclosed by the courts.
In amending the FOIA in 1974, the Congress expanded the scope of judi-
cial review of agency claims that information was classified and therefore
exempt from disclosure under Exemption One of the Act. Courts were also
specifically authorized to review documents in camera to determine the ap-
plicability of exemptions. In 1976, Exemption Three was also amended to nar-
row the category of other statutes which can be relied upon to withhold in-
formation. However, with respect to classified information, the 1974 confer-
ees recognized "that the Executive departments responsible for national defense
and foreign policy matters have unique insights into what adverse affects might
occur as a result of public disclosure of a particular classified record"
and that they expected that Federal courts "will accord substantial weight
to an agency's affidavit concerning the details of the classified status of
the disputed record." S. Rep. No. 93-1200, 93d Cong., 2d Sess. 12 (1974). It
was also intended, and courts have so held, that the two statutes protecting
"intelligence sources and methods" and other intelligence agency data, which
the CIA now seeks to amend, are embraced by Exemption Three and provide auth-
ority to withhold the information described therein. 50 U.S.C. 403(d)(3); 403g.
Goland v. Central Intelligence Agency, 607 F.2d 339 (CADC 1978); Baker v.
Central Intelligence Agency, 580 F.2d 664 (CADC 1978); Weissman v. Central In-
telligence Agency, 565 F.2d 692 (CADC 1977). A similar, but broader statute,
authorizing withholding of information relating to the organization, functions,
activities, or personnel of the National Security Agency, has also been held
to be a (b)(3) statute for purposes of the FOIA. 50 U.S.C. 402 note (1976);
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Hayden v. National Sec. Agcy./Cent. Sec. Serv., 608 F.2d 1381 (CADC 1979); Found-
ing Church of Scientology v. National Security Agency, No. 77-1975 (CADC, May 15,
1979).
The question in recent litigation, therefore, has not been the presence of
authority to withhold intelligence information but rather whether the agency has
sufficiently demonstrated that the information sought to be withheld comes within
the terms of the withholding statute or has been properly classified. Courts
are required to review the agency's decision de novo, with the burden of demon-
strating exemption from the FOIA placed on the agency. However, "substantial
weight" is to be given to agency affidavits which contain sufficiently detailed
justifications for nondisclosure and are not vague or conclusory. Particular
exemptions relied upon must be keyed to specific information. While in camera
examination of withheld documents is available in national security cases as in
all other FOIA cases, detailed affidavits may make such examination unnecessary.
Hayden, supra; !aa v. Turner, 587 F.2d 1187, 1194 (CADC 1978); Goland, supra;
Founding Church of Scientology, supra.
While public justification of nondisclosure is desirable, courts have re-
cognized that the sensitivity of certain intelligence information may require
extraordinary measures to preserve secrecy. The filing of sealed affidavits in
camera has been permitted, and has been seen to be especially necessary when the
agency feels it is unable to even confirm the existence of FOIA responsive re-
cord. Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (CADC 1976); cf.
Medoff v. U.S. Central Intelligence Agency, 464 F. Supp. 158 (D.N.J 1978). See
also, Founding Church of Scientology, supra; Halperin v. Central Intelligence
Agency, 446 F. Supp. 661 (D.D.C. 1978). In camera hearings have also been con-
ducted without the presence of plaintiff's counsel in order to enable the agency
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to justify its withholding decision. Kanter v. Department of State, 479 F.
Supp. 921 (D.D.C. 1979); Hayden, supra. As the court in Hayden recognized,
"In a limited range of security cases, it is simply not possible to provide
for orderly and responsible decision making about what is to be disclosed,
without some sacrifice to the pure adversary process." 608 F.2d at 1385.
The failure of an agency to justify withholding of intelligence or
national security information under the FOIA has not always precipitated
court ordered release of such information. In Halperin v. Department of
State, 565 F.2d 699 (CADC 1977), the agency was unable to show that certain
information (transcripts of Kissinger. press conferences) was properly classi-
fied and therefore exempt under (b)(1). However, the court, hesitant "to
order release of material that would allegedly do grave damage to national
security," ordered the District Court to examine the records and indicated
that a prior restraint rationale to prevent disclosure might be applicable.
Similarly, in Sims v. Central Intelligence Agency, 479 F. Supp. 84 (D.D.C.
1979), the court, after the agency failed to sustain its burden under (b)(3),
permitted the agency to reexamine the documents and "act on the possibility
of classifying information held to be otherwise discloseable." 479 F. Supp.
at 88.
Thus, the burden placed on intelligence agencies by the FOIA has not been
the court-ordered disclosure of intelligence information but rather the neces-
sity to search and review records and justify their nondisclosure. The search
and review responsibility is shared to a greater or lesser degree by all agen-
cies subject to the Act. The burden to justify withholding is also required
of all agencies, but the courts have devised special procedures, in light of
the sensitivity of the information, when claims are made based on national
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security. The burden is still on an intelligence agency to justify withhold-
ing of information, but sealed affidavits or other in camera proceedings may
be provided to insure secrecy in the course of deciding the FOIA case. If
reasonable efforts to locate responsive documents are shown to have been made
and their withholding is adequately justified, intelligence information can be,
and has been, protected. See, Ray v. Turner, 468 F. Supp. 730 (D.D.C. 1979)
(on remand) (CIA justified withholding of information); Goland, supra.
Finally, it might be noted that the proposed CIA amendments exempt desig-
nated files from disclosure and search and review under the FOIA, "except to
the extent that-information on American citizens and permanent resident aliens
requested by such persons on themselves... may be contained in such files."
Many of the major cases dealing with the duties and special problems of intel-
ligence agencies under the FOIA involved requests by individuals for their own
files. Hayden, supra; Ray v. Turner, supra; Marks v. Central Intelligence Agcy.,
590 F.2d 997 (CADC 1978),; Weissman, supra; Fonda v. Central Intelligence Agency,
434 F. Supp. 498 (D.D.C. 1977); Ferry v. Central Intelligence Agency, 458 F.
Supp. 664 (S.D.N.Y. 1978)1.
Richard Ehlke
Legislative Attorney
American Law Division
February 13, 1980
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