STATEMENT OF (SANITIZED) ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION ON S. 1324 BEFORE THE SENATE SELECT COMMITTEE ON INTELLIGENCE JUNE 28, 1983

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00135R000500820005-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 20, 2016
• Document Release Date: April 8, 2008
• Sequence Number: 5
• Publication Date: June 28, 1983
• Content Type: REPORT

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STATE `: NN OF
ON BE "HALF OF
TUE AMERICAN CIVIL LIBERTIES UNION
BEFORE THE
SENATE: SELECT COMMITTEE ON INTELLIGENCE
JUNE 28, 1983
?r . Chairman:
Thank you for your invitation to the American Civil
Liberties Union to testify on S. 1324, a bill to amend the
National Security Act of 1947 so as to remove certain files
of the Central intelligence Agency from the coverage of the
Freedom of information Act. The ACLU is a nonpartisan organization
of over 250,000 members dedicated to defending the Bill of
Rights. The ACLU regards the FO`_A as one of the most important
pieces of legislation ever enacted by Congress because the
Act positively implements the principle, protected by the
First Amendment, that this nation is committed to informed,
robust debate or, matters of public importance. ?ccordinjly,
the ACLU is extremely wary of all proposals to limit the
FOIA.
However, the introduction of S. 1324 by Chairman Goldwater
and Senator Thurmond and last week's testimony on the bill.by
Mr. John N. McMahon, the Deputy Director of Central Intelligence;
mark a significant shift in the debate of the last several
years over the applicability of the FOIA to the CIA which we
welcome and commend. The Agency is no longer seeking a total
exemption from the Act; it is no longer arguing that the Act
STAT
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is in ercnt.iy incompatible with the operation, of an intelligence
service; and it is no longer arguing that no information of
any value has ever been released by the CIA under the Act.
1, ,st significant of all, Mr. 1.1c Mahon stated that if this
bill is passed "the public would receive improved service
from the Acjcncy under the FOIA without any meaningful loss of
information now released under the Act."
if in fact no meaningful information now available under
the FOIA will be withheld under this bill and if the bill
will result in more expeditious processing of requests, the
bill will not be a set-back for the FOIA. However, there are
many questions which must be answered before we can be confident
that :Mr. McMahon's assurance will be borne out. In this regard,
the ACLU's position is quite similar to the views expressed
by Senators Durenberger, Huddleston, and Leahy in their statements
at last week's hearing on this bill. The assumptions about
the Agency's filing system on which this bill rests must be
e::am,ined and substantiated by the Committee. Furthermore, in
order to be sure that there will be no meaningful loss of
currently available information,. we wish to submit to the
Com,:ttee examples of declassified information released by
the CIA under the FOIA which was of public significance. We
need to be assured that this type of information will continue
to be accessible under this bill. We are also awaiting the
CIA's analysis of the, impact this bill would have on pending
litigation.-
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r his point, I would like to yet forth our Understanding
o" this bill would do. If this, underst:lndtr is mistaken
or incc;i~alete in any respect, we request clar if icat ion so
ther= will be no misunderstanding over the bill.
I. Certain operational files, the contents of which
are now invariably exempt from disclosure, will be exempt
from search and review. However, all gathered intelligence
will be accessible subject to the Act's exemptions, as it is
now. The findings section of the bill states that the organiza
tion of the Agency's records system permits such a division
between operational files and gathered intelligence. According
to last week's testimony, most items of, gathered intelligence,
whether "raw" or "finished," are routinely disseminated outside
the components identified in the bill and are stored in non-
operational files. In exceptional circumstances where g ath_red
intelligence is stored in an operational component, it will
be indexed in a non-operational file and will be subject to
search and review. By making all gathered intelligence accessible
this bill is a significant improvement over past proposals
which would have made only finished intelligence reports,
such as national intelligence estimates, accessible. This is
an important development, because finished intelligence may
omit raw information that is important to understanding events.
2. operational files will be subject to search and
review in response to requests for information concerning
"special activities" -- i.e., covert operations for purposes
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_.her.. t`:: n the collection of intelligence -- if disclosure of
the E-X: Stf=rlce of such activities is not otherwise xemp+
under the FOIA. This provision COG 1fies the Current procedures
,.::,der the Act. See, e g , Phillippi v. CIA, 546 F.2d 1009
(D.C. Cir. 1976).
3. All CIA files, including operational files, will
continue to be subject to search and review in response to
requests from United States citizens and permanent resident
aliens for information concerning themselves.
4. Only the operational files of the CIA's Directorate
of Operations, Directorate of Science and Technology, and
Office of Security will be eligible for exemption from search
and review. Thus, operational information located elsewhere
in the Agency will be subject to search and review. For
example, if operational matters become the subject of policy
debates within the Agency (e.g., a debate over tasking or
other resource allocation) or the subject of investigations
into alleged abuses (e.q., by the Office of the Director of
Central Intelligence, by the Intelligence Oversight Board,
the Office of General Counsel, or the Office of the inspector
General), the records of such debates or investigations will
be subject to search and review.
On this last point, we believe tha.t the bill needs further
clarification. Last week's testimony from the CIA indicated
that all relevant information concerning an investigation of
impropriety. would be in the files of the component that conducts
the investigation and therefore would be accessible. However,
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thave been insta cos. L;here ~n?:estigationn hevi.~ been
c:on,5;)cted by sending an invest igat_._ into the fUJ.e of an
operational component rather than bringing those files to the
investigating component. For exar^.cie when the first internal
reports on Op-ration CHAOS were prepared, the CHAOS files
were not removed from.the Directorate of Operations. Other
aspects of the so called "Family Jewels" were also compiled
in this manner. Thus, we believe that when an intelligence
activity has been the subject of an investigation for impropriety
or illegality, the relevant underlying files should be subject
to full search and review. If the bill is not amended in
this respect, we fear that large numbers of important documents
such as the CHAOS and the MKULTRA files would be removed from
the FOIA, and such a result would be wholly unacceptable.
Another issue which requires clarification is judicial
review. Indeed, the CIA's testimony last week on this matter
was quite disturbing. We believe that it is essential for
courts to have the authority to conduct de novo review whenever
a question is raised as to whether a non-operational file has
been improperly characterized as an operational file. Without
this check, the public will not have sufficient confidence
the Agency has not succumbed to the temptation to broaden
tha
V.. ....L
the designation of.files beyond the definitions established
by the bill.
It was a surprise to hear the CIA assert that there
would be no judicial review on this, issue because there is
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not.iin ; in tha_ bill which precludes judicial rev
the general presu ';ption of reviewability of agency dec ision:s
r~ ~r the FO1 .. However, in lignc of the. intrrprf_ a'ci.on
which the Agency's testimony has suggested, we believe that
it is imperative that both the bill and the legislative his-o,
clearly indicate that de novo judicial review is available.
In this regard, we urge that the concept of designation by
the DCI be deleted from the bill'so that it is clear that
Congress rather than the DCI is setting the standards for
determining which files will be removed from search and revie;v.
Let me stress that the judicial review we regard as
essential does not have to involve the document by document
examination which seems to be the Agency's principal concern.
When a question arises over whether the Agency has failed to
search a particular file and the issue is whether that file
meets the definition of operational, a court can resolve the
controversy by inquiring about the nature of the file itself
rather than inquiring into its particularized contents.
Finally, Mr. Chairman, I would like to turn to the CIA's
promise that it will provide improved service to FOIA requesters
under this bill. There is a very great need for improvement
on this score. The two to three year wait which the public
must endure has greatly diminished the Act's utility. As Mr.
McMahon acknowledged last week, some people have given up
making requests to the CIA because of the backlog.
In addition to the backlog itself, the Agency's attitude
toward requesters has too frequently been grudging and uncooperative.
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n e~ Agency's Information and D1'. is ion, perl-n-ps
th_ ur inq of other components, has developed a number o
straw e s to stymie the processing of requuests. Here are
some :event examples.
On September 24, 1982, a member of the staff of the
Center for National Security Studies requested CIA studies
produced since October 15, 1979 on the subject of where the-
insurgents in El Salvador receive their weapons and other
support. The request specifically disclaimed any interest in
raw intelligence reports and limited itself to analytic studies.
The CIA made the following response:
Your request, as submitted, cannot be pro-
cessed under the FOIA. Under the provisions of
the FOIA, we are neither authorized nor required
to perform research or create records on behalf
.of a requester. Almbst without exception, our
FOIA searches, because of the structure of our
records systems, must be limited to those that
can be conducted for records that are indexed
or maintained under the name of an individual,
organization, title, or other specific entity.
Further, if our searches surface information,
we are not permitted to analyze that information
on behalf of a requester to determine if it is
in some way related to an event, activity, in-
cident-, or other occurrence.
The foregoing paragraph is apparently a piece of boilerplate
on a word-processor, for it.appears in many Agency responses.
By making this response, the Agency avoids its obligation to
process the request. While there may be some requests that
are so vague that such a response is appropriate, it is used
in many cases where it is plainly inappropriate. In this
instance, it'was astonishing to sugy?est that the CIA cannot
identify any studies on the source of we .pons to the insurgents
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i n El Salvador, for this is one of the key issues in the